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New York State Constitution
and Relevant NY State Court Rulings
on NY Gun and Handgun Laws.

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FEDERAL & STATE LINKS

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NRA ILA Research Library

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BATF's list of gun laws in NY including some cities

http://www.atf.treas.gov/firearms/statelaws/26thedition/newyork.pdf

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PLEASE READ    This is some of the legal information that you might find interesting.  I hate to tell you this at the start but not much of the 2nd Amendment, if any, is left in New York State.  I have started out with those rulings that I think are the most important, or of the most interest, but many rulings are out there that could have an impact on what you think that you can do.  Make sure that you read the ruling  and most important can follow the logic or the lack of it.  One of my favorites is from O'BRIEN v. KEEGAN that states that "inability to demonstrate a need - - or much less, any reason - - for an unrestricted license, which would permit him to carry several concealed firearms".  The failure of the Judges to understand that all handguns must be listed on a license and that any restriction on a license applies to all of the listed handguns is something that I do not understand.  Restrictions are added to the license and the holder of the license, not to each gun listed on the license.  I will be adding to this page as time allows me to do more research.

THE LAWS CAN CHANGE AT ANY TIME!!  BE CURRENT! ASK A LAWYER!!



NEW YORK STATE CONSTITUTION
AND RELEVANT
NEW YORK STATE COURT RULINGS.

NEW YORK STATE ORIGINAL CONSTITUTION, 1777

    XL.    AND WHEREAS it is of the utmost importance to the safety of every State, that it should always be in a condition of defence; and it is the duty of every man, who enjoys the protection of society, to be prepared and willing to defend it; this Convention therefore, in the name and by the authority of the good people of this State, doth ORDAIN, DETERMINE and DECLARE, that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.  That all such of the inhabitants of this State, being of the people called Quakers, as from scruples of conscience, may be adverse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money in lieu of their personal service, as the same may, in the judgment of the legislature, be worth: And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, for ever hereafter, at the expence [sic] of this State, and by acts of the legislature, established, maintatained, and continued in every county in this State.
 

(This article was replaced in 1938 and the 1938 Article was replaced in 1962.)

NEW YORK STATE CONSTITUTION, 1962, ARTICLE XII: DEFENSE

    Section 1.  The defense and protection of the State and of the United States is an obligation of all persons within the state.  The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.
 
 

NEW YORK STATE CIVIL RIGHTS LAW ARTICLE 2 SECTION 4

        A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.
NY State Pistol license from 1933, front
NY State Pistol license from 1933, back

CURRENT NY STATE LICENSE FORM
(Some counties have slightly different forms and new driver's license style are starting to be used in some counties.)
NY Pistol License, 2000, front
NY Pistol License Back, 2000, back


WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

 

The Embarrassing Second Amendment
by Sanford Levinson


From the LIGHTNING ROD NETWORK
CLICK HER TO LINK TO WHERE THE FOLLOWING
Court decisions can be found.
Court decisions affecting the RKBA in New York
(Not all links will work)

07-0581-cv
Maloney v. Cuomo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________

August Term, 2008
(Argued: December 15, 2008 Decided: January 28, 2009)
Docket No. 07-0581-cv
CLICK HERE FOR THE WHOLE DECISION

    Plaintiff-appellant James Maloney was arrested at his home on August 24, 2000, and charged with possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). …  This charge was dismissed on January 28, 2003, and Appellant pleaded guilty to one count of disorderly conduct. … Appellant filed the … complaint … seeking a declaration that N.Y. Penal Law §§ 265.00 through 265.02 are unconstitutional insofar as they punish possession of nunhakus in one’s home.  …  He argues, inter alia, that New York’s statutory ban on the possession of nunchakus violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and (2) the Fourteenth Amendment because it lacks a rational basis. Neither of these arguments has any merit.
  … The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not
violate the Second Amendment.

Citizens for a Safer Community v. City of Rochester  Upholds Rochester AW Ban, No 2nd Amendment in NY
City of New York v. Job-Lot Pushcart
Ellman v. Davis
Grimm v. City of New York,1968,  in part:
Plaintiffs not only seek to have this court declare the Gun Control Law unconstitutional without the requisite showing, but urge as a ground that the Gun Control Law violates the Second Amendment to the Constitution of the United States. The short answer to this contention is supplied in plaintiffs' own brief. As plaintiffs concede, it has been held that the Second Amendment is not a limitation upon the states. (Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 [1886].) Further, the United States Supreme Court has declined to hold that the first ten amendments of the Constitution were all made applicable to the states through the adoption of the Fourteenth Amendment. (Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 [1947].) In the conceded absence of any contrary authority, the court rejects plaintiffs' claim that the Gun Control Law violates the Second Amendment.
McCarthy v. Olin
McCarthy v. Ruger
New York City ban on "assault weapons" upheld
O'Brian v. Keegan
O'Conner v. Scarpino
People v. Evergood
Richmond Boro Gun Club v. City of New York (1/2)
Richmond Boro Gun Club v. City of New York (2/2)
State of New York v. Anderson
Zalmanov v. Bratton
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, -againts- STURM, RUGER & COMPANY, INC., et al., Plaintiffs... asserting claims for statutory and common law public nuisance.. This is the opinion that was against Spitzer. This is on the Coa litio n 2 Stop G un V iol ence, web page.

Hamilton v. Accu-Tek,

1. Bach v. Pataki 408 F. 3d 75 US 2nd Circuit (2005)-- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

2. O'Connor v. Scarpino 83 N.Y.2d 919 (1994) http://scholar.google.com/scholar_ca...=2,33&as_vis=1

3. O'Brien v. Keegan 87 N.Y.2d 436 (1996) -- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

4. Archibald v. Codd 59 A.D.2d 867 (1977) -- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

5. Klenosky v.City of New York Police Department 75 A.D.2d 793 (1980)-- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

6. Sewell v. City of New York 182 A.D.2d 469 (1992)-- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

7. Theurer v. Safir -- 254 A.D.2d 89 (1998)-- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

8. Kaplan v. Bratton-- 249 A.D.2d 199 (1998) -- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

9. Parker v. Nastasi 97 A.D.2d 547 (1983)-- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

10. Caruso v. Ward 160 A.D.2d 540 (1990) http://scholar.google.com/scholar_ca...=2,33&as_vis=1

11. Williams v. Bratton 238 A.D.2d 269 (1997) -- http://scholar.google.com/scholar_ca...=2,33&as_vis=1

12. Beach v. Kelly 52 A.D.3d 436 (2008), 860 N.Y.S.2d 112 http://scholar.google.com/scholar_ca...=2,33&as_vis=1

LIST FROM

CLICK HERE TO LINK TO A LIST OF JUST ABOUT EVERY CASE
THAT YOU WOULD EVER WANT TO SEE DEALING WITH GUNS.
In 1998 Professor Dave Kopel & Professor Ron Noble taught a class at NYU School of Law called
Gun Control and Gun Rights
While you can not take the class you can see the Syllabus and links to syllabus items and other research sources on the web.  A great list of  "Required reading"
CLICK HERE TO LINK TO:   http://www.law.nyu.edu/nobler/guncontrol/


Sources on the Second Amendment and
Rights to Keep and Bear Arms in State Constitutions
By Prof. Eugene Volokh, UCLA Law School
CLICK HERE TO GO TO THE WEB PAGE

     Eugene Volokh teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
      Volokh also worked for 12 years as a computer programmer, and is still partner in a small software company which sells HP 3000 software that he wrote. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. He is a member of the The American Law Institute.

Firearms Registration: New York City`s Lesson
An NRA-ILA Fact sheet

TO FIND NY CITY LAWS

Go to: http://public.leginfo.state.ny.us/menuf.cgi
Go to the bottom and click on Laws of NY
Go to the bottom and click on: ADC New York City Administrative Code(NEW)
Then look down for:
Title 10 - PUBLIC SAFETY
Then look for
Chapter 3 - (10-301 - 10-312) FIREARMS

5th Amendment, Self-Incrimination, & Gun Registration
U.S. v. Haynes (1968)
CLICK HERE FOR THE FULL
NRAILA article by Clayton E. Cramer

     In Haynes, a Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. [1] His argument was ingenious: since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm.
      Haynes further argued that for a convicted felon to register a gun, especially a short-barreled shotgun, was effectively an announcement to the government that he was breaking the law. If he did register it, as 26 U.S.C. sec.5841 required, he was incriminating himself; but if he did not register it, the government would punish him for possessing an unregistered firearm -- a violation of 26 U.S.C. sec.5851. Consequently, his Fifth Amendment protection against self-incrimination ("No person...shall be compelled in any criminal case to be a witness against himself") was being violated -- he would be punished if he registered it, and punished if he did not register it. While the Court acknowledged that there were circumstances where a person might register such a weapon without having violated the prohibition on illegal possession or transfer, both the prosecution and the Court acknowledged such circumstances were "uncommon." [2] The Court concluded:

* We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851.

SOME NEW YORK STATE APPEAL COURT RULINGS RELATED TO HANDGUN LICENSES

Williams v Bratton

This is how NYC can refuse to issue full carry licenses because very few people can: "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." (So, if you don't give a license to person "A", because person "B" doesn't have a license and if person "B" applies for a license you can turn them down because you did not give a license to person "A" so if "A" comes back and applies again you can turn them down because you did not give a license to person "B" and the circle is closed.)

In the Matter of Joseph G. Williams, Respondent, v. William J. Bratton, as Police Commissioner of the City of New York, et al., Appellants. 656 N.Y.S.2d 626
     Order, Supreme Court, New York County (Louis York, J.), entered on or about September 7, 1995, which annulled the determination of the New York City Police Commissioner denying petitioner's application for a "carry" pistol license, unanimously reversed, on the law, without costs or disbursements, the petition dismissed and the determination confirmed.
       In April 1994, petitioner, an attorney with a real estate and estates practice, applied for a carry pistol license. Citing petitioner's 1985 arrest for reckless endangerment and discharging a firearm and the circumstances of that arrest, as well as the absence of documentation to support petitioner's claim of substantial cash flow or frequent cash deposits, the police officer investigating petitioner's application recommended disapproval. The application was subsequently disapproved, for the reason that "[d]ocumentation submitted does not support ... [s]ubstantial cash on hand [or f]requent cash deposits" and for an "other", unspecified, reason. After petitioner's *270 administrative appeal was denied, he commenced this CPLR article 78 proceeding challenging respondents' determination. The IAS Court granted the petition and directed the Police Commissioner to issue the permit, noting that petitioner had "once before" been granted a permit, which was revoked only after his arrest on charges, which had thereafter been dismissed.
     The issuance of a license to carry a gun is a privilege, not a right. (Sewell v City of New York, 182 AD2d 469, 472, lv denied 80 NY2d 756.) An applicant for such a license must show that " 'proper cause' " for its issuance has been established. (Matter of Bernstein v Police Dept., 85 AD2d 574; see also, Penal Law § 400.00.) To establish " 'proper cause,' " an applicant must, inter alia, "sufficiently demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." (Matter of Klenosky v New York City Police Dept., 75 AD2d 793, affd53 NY2d 685.)
     As the record shows, the Police Commissioner's denial of petitioner's application was neither arbitrary and capricious nor an abuse of discretion. In his 1994 application, petitioner claimed that he is "required to handle large sums of cash in closing situations" and to "take custody of certified checks for large sums of money as part of settling estates and for deposit into heirs ['] accounts." While at the administrative level, prior to the Police Department interview, petitioner was asked to submit daily deposit slips and copies of bank statements for the past six months to substantiate his claim of carrying large sums of cash in connection with his law practice, the only documentation produced which lent support to the claim were two certified checks and a bank check, totalling less than $74,000 and involving one estate. As noted, the Police Department investigator, after reviewing petitioner's submission, found that the documentation produced pursuant to request demonstrated a "low cash flow." Petitioner did not then nor does he now in this proceeding submit any documentation indicating, as he claims, that he regularly transports expensive jewelry or substantial amounts of cash for deposit. Thus, petitioner has failed to demonstrate that respondents' determination that his documentation was insufficient was arbitrary, capricious or an abuse of discretion (see, e.g., Matter of Tartaglia v Kelly, 215 AD2d 166; Sewell v City of New York, 182 AD2d, supra,at 473) and, consequently, that he has a special need, distinct from other attorneys whose specialty is real estate and estate practice, to carry a pistol (Matter of Klenosky *271 v New York City Police Dept., 75 AD2d, supra, at 793). In addition, the circumstances underlying petitioner's 1985 arrest for discharging his firearm, as the Police Department found, cast doubt on his fitness to possess a concealed weapon.
     Finally, we note that petitioner's alternate basis for relief, i.e., reinstatement of his previously granted carry pistol license, subsequently cancelled, or a departmental hearing on his l986 request for reinstatement is barred, at the very least, by the doctrine of laches.
Concur--Sullivan, J. P., Wallach, Williams and Tom, JJ.
Copr. (c) 2001, Randy A. Daniels, Secretary of State, State of New York.
N.Y.A.D.,1997. Matter of Williams v Bratton

Part of this page


LINKS TO CASES

OPINIONS OF THE ATTORNEY GENERAL

1995-2004, Index by
Numerical Index
Statutory Index, (PL 265--, PL 400)
Subject Index Firearms


DIVORCE

S 8234 / A 11535
Pataki's 5 point gun control plan of 2000

     On 8/9/2000 Gov. Mario Pataki signed his 5 point gun control plan into law. Not only did he sign the bill but he invited Congresswoman Carolyn McCarthy and they had the signing at the Long Island Railroad Station where the train pulled in after Collan Fergerson shot many people and killed Congresswoman Carolyn McCarthy's husband and injured her son.  Nothing in the new law would have prevented Fergerson from killing anyone but having someone on the train with a gun might have stopped him and the killing.
     Gov. Mario Pataki introduced the bill using special powers and the bill was passed in 3 days without any debate. He wrote the bill without any input from anyone in the shooting community.
     The 5 point plan really had 28 sections and none of them will really do much to reduce crime.
     The 5 points were:

      1. Close gun show loophole.
      2. Firearms be sold with child safety locks
      3. State ban on assault weapons
      4. Raises the minimum age to obtain a handgun permit to 21 years old.
      5. Implements a DNA for Handguns program.

CLICK HERE TO SEE THE BILL EXPLAINED AS WELL AS I CAN
CLICK HERE TO SEE A PRINTABLE COPY OF THE BILL

Click here to see my newsletter article:
8/00, 7/00, 6/00 bill passes,


IN THE MATTER OF MICHAEL O'CONNOR v. ANTHONY A. SCARPINO, JR.

IN THE MATTER OF BELINDA G. EDDY v. HON. PATRICK L. KIRK, HERKIMER COUNTY
COURT JUDGE,
Restrictions are OK: We agree ... that the licensing officers' power to determine the existence of "proper cause" for the issuance of a license necessarily and inherently includes the power to restrict the use to the purposes that justified the issuance.

83 N.Y.2d 919 (1994).
June 9, 1994

2 No. 90 [1994 NY Int. 096]
4 No. 91
Decided June 9, 1994

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

MEMORANDUM:

The judgments of the Appellate Division should be affirmed, with costs.

Penal Law § 400.00 is the exclusive statutory mechanism for the licensing of firearms in New York State. Under subdivision (2)(f) of that section, a licensing officer is empowered to issue the so-called "carry license", which authorizes a licensee to have a pistol or revolver and carry it concealed, "when proper cause exists for the issuance thereof".

Petitioner Eddy sought a carry license from the Herkimer County licensing officer, stating in her application that she intended to use a pistol for "hunting and target shooting". The officer issued the license with the notation that it was "issued for hunting, fishing & target practice". Petitioner O'Connor sought a carry license from the Westchester County licensing officer, indicating that he wanted to use a weapon in "hunting, target shooting and protection of property and person". The officer issued the license with a notation that it was "restricted to target shooting, hunting only".

In each matter, petitioner argues that the restriction should be removed from the license because the statute does not expressly empower licensing officers to impose conditions. We agree with the courts below that the licensing officers' power to determine the existence of "proper cause" for the issuance of a license necessarily and inherently includes the power to restrict the use to the purposes that justified the issuance. Without such a power to condition, the licensing officer's authority to allow possession of a handgun only for proper cause would be rendered meaningless and the obvious regulatory purpose of the statute would be frustrated.

Moreover, petitioners' argument is inconsistent with the regulatory scheme of Penal law § 400.00. The other licenses allowed by the statute are narrowly circumscribed to the circumstances justifying their issuance (see, e.g., subd 2[a] [license to possess in dwelling]; subd 2[b] [license to possess in place of business]; subd 2[e] [license to possess during certain employment]). Were we to read the carry license of subdivision 2(f) to allow possession of firearms generally once good cause was shown, there would be no reason for applicants to seek the more restrictive licenses enumerated in the statute when they could just as easily qualify for the broader carry license. Clearly, the legislative intent behind subdivision 2(f) was to create a license co-equal to the other licenses, not one that would render the other licenses superfluous.

Nos. 90 and 91: Judgment affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur


IN THE MATTER OF JERALD O'BRIEN, RESPONDENT, v. THOMAS W. KEEGAN, AS
JUSTICE OF THE SUPREME COURT, APPELLANT.
A Judge can restrict a license at any time for any reason: the licensing officer is statutorily invested with the power to sua sponte revoke or cancel a license (see, Penal Law § 400.00[11][other than in New York City and Nassau and Suffolk Counties, a judge or justice of a court of record acts as the licensing officer]). This extraordinary power reposed in a licensing officer in and of itself supports respondent s determination to restrict the scope of petitioner s license.
     (Sua Sponte: Lat. Of his or its own will or motion; voluntarily; without prompting or suggestion. Black's Law Dictionary, 4th edition.)

87 N.Y.2d 436, 663 N.E.2d 316, 639 N.Y.S.2d 1004 (1996).
February 15, 1996

3 No. 15[1996 NY Int. 26]
Decided February 15, 1996

This opinion is uncorrected and subject to revision before publication in the New York Reports.

 Wayne L. Benjamin, for Appellant.
Jeffrey Chamberlain, for Respondent.

 CIPARICK, J.:

 A licensing officer will issue a license to possess and carry a concealed firearm only when "proper cause exists" (see, Penal Law § 400.00[2][f]). Other than in New York City and Nassau and Suffolk Counties, where licenses are subject to renewal every three or five years, respectively, the procedure to amend a "carry concealed license" to add or delete weapons is by application to the licensing officer (see, Penal Law §§ 400.00[9]; 400.00[10]). In furtherance of both the regulatory and public safety purposes of Penal Law § 400.00, we hold that a licensing officer is authorized to engage in a "proper cause" inquiry when presented with an application to amend a carry concealed license.

 On March 31, 1987, Albany City Court granted petitioner's application for a carry concealed license, restricted to hunting and target practice. In 1989, petitioner applied to amend his license to cover two additional firearms and remove the hunting and target shooting restrictions. On June 29, 1989, petitioner's application was granted, without a proper cause inquiry, and he was issued an unrestricted carry concealed license for his two semi-automatic pistols and one revolver. In early 1990, petitioner again sought to amend his license to reflect the acquisition of another semi-automatic handgun. On February 1, 1990, the same licensing officer approved the amendment, again without conducting a proper cause inquiry.

 The third time petitioner applied to amend his license he sought to substitute one revolver for another and add another semi-automatic handgun, and requested the issuance of a license that conformed with the recently redesigned license format. This application was reviewed by a different licensing officer, who concluded that petitioner failed to demonstrate proper cause to hold an unrestricted carry concealed license under Penal Law § 400.00(2)(f). Thus, the licensing officer granted petitioner's application to amend his license to the extent of authorizing the addition of one weapon and deletion of one weapon -- for a total of five firearms -- and restricting the license to hunting and target shooting.

 Petitioner protested, and the licensing officer agreed to meet with him to consider his request for removal of the hunting and target shooting restrictions. According to the licensing officer, petitioner could not articulate any valid reason when he was asked why he needed to carry up to five concealed weapons at virtually any time. Indeed, petitioner informed the licensing officer that he wanted an unrestricted carry concealed license because "[i]t makes me feel better." The licensing officer adhered to the original determination that the proper cause shown by petitioner only supported a license restricted to hunting and target shooting.

 Petitioner challenged this determination in a CPLR Article 78 proceeding, initiated in the Appellate Division pursuant to CPLR 506(b)(1), to compel the licensing officer to remove the restrictions from petitioner's license on the ground that the licensing officer was not authorized to modify his valid unrestricted license. Petitioner argued that under Penal Law § 400.00(10) his unrestricted license remains "in force and effect until revoked" and the licensing officer improperly revoked the license issued by the prior licensing officer. The Appellate Division, with one Justice dissenting, granted the petition to the extent of directing the removal of the hunting and target shooting restrictions and the issuance of an unrestricted license, ruling that an application to amend a license "does not trigger the opportunity for another 'proper cause' determination." (see, Matter of O'Brien v Keegan, 207 AD2d 5, 7- 8). We disagree, and now reverse.

 Eligibility for a license in the first instance or for renewal is contingent upon an investigation by the licensing officer, and a finding that all statements in the application are true (see, Penal Law § 400.00[1]). Thus, as a threshold matter, the investigation of an applicant for a carry concealed license must yield "proper cause" to the licensing officer's satisfaction for a license to issue (see, Penal Law § 400.00[2][f]). At the other end of the spectrum, the licensing officer is statutorily invested with the power to sua sponte revoke or cancel a license (see, Penal Law § 400.00[11][other than in New York City and Nassau and Suffolk Counties, a judge or justice of a court of record acts as the licensing officer]). This extraordinary power reposed in a licensing officer in and of itself supports respondent s determination to restrict the scope of petitioner s license.

 Additionally, we recently held that a licensing officer's power to determine the existence of "proper cause" for the issuance of a license necessarily and inherently includes the power to restrict the use of a license to the purposes that justified its issuance (see, Matter of O Connor v Scarpino, 83 NY2d 919, 921). Without such power to condition, the licensing officer's authority to allow possession of a handgun only for proper cause would be rendered meaningless and the obvious regulatory purpose of the statute would be frustrated" (id). This applies with equal force to the licensing officer's powers upon review of an application to amend a license. To find otherwise would nullify the purpose underlying a formal amendment procedure and conflict with the dual aims of Penal Law § 400.00.

 Under the circumstances of this case, it was not unreasonable for respondent to restrict petitioner's license. While petitioner does not dispute that respondent was justified in inquiring about "changed circumstances," petitioner insists that Penal Law § 400.00(9) does not permit respondent to alter his license upon an application to amend, absent some "cause" related to his fitness to hold a firearm. Petitioner reads the statute too narrowly. Petitioner's inability to demonstrate a need - - or much less, any reason - - for an unrestricted license, which would permit him to carry several concealed firearms, supports the licensing officer's finding that there was no "proper cause" to justify an unrestricted carry concealed license. Consequently, the licensing officer's restriction of petitioner's license was neither arbitrary nor capricious, promoting both the regulatory and public safety aims of Penal Law § 400.00.

 Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.
 

 Judgment reversed, with costs, and petition dismissed. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Simons,
Titone, Bellacosa, Smith and Levine concur.


Seamon v. Coccoma, 2001 WL 279217 (N.Y.A.D. 3rd Dept.), 3/22/01

     The Petitioner moved pursuant to CPLR Article 78 to review the determination of the County Judge to revoke his pistol permit. The Petitioner's father filed a family offense petition and a felony complaint based on an altercation with the Petitioner. Although the Petitioner's father eventually withdrew the family offense petition and the felony complaint was dismissed the Respondent ordered a hearing to determine whether or not to revoke the Petitioner's firearm license. The Petitioner's father testified at the hearing to a much more benign incident that the one he alleged in the family offense petition and the felony complaint. Nevertheless, the Respondent revoked the Petitioner's pistol license based on the Petitioner's fathers sworn statements contained in the family offense petition and the felony complaint.

      The Court affirmed the Respondent's decision to revoke the Petitioner's pistol permit. It found that the Respondent has broad discretion in this matter and there was no reasonable basis to disturb his finding as the violent conduct alleged in the sworn family offense petition and felony complaint "demonstrated ...a lack of essential temperament and character to posses a pistol."  


U.S. Supreme Court, HAYNES v. UNITED STATES, 390 U.S. 85 (1968)

     Petitioner was charged by information with violating 26 U.S.C. 5851 (part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms used principally by persons engaged in unlawful activities) by knowingly possessing a defined firearm which had not been registered as required by 26 U.S.C. 5841. ... Petitioner moved before trial to dismiss the charge, sufficiently asserting that 5851 violated his privilege against self-incrimination guaranteed by the Fifth Amendment.

...

     We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 5841 or for possession of an unregistered firearm under 5851.


Section from

BRIEF OF AMICUS CURIAE, CONGRESS OF RACIAL EQUALITY

US v TIMOTHY JOE EMERSON

...

In the Northeast, the period from the 1870's to the mid-1930's was characterized by strong xenophobic reactions to Eastern and Southern European immigrants. Armed robbery in particular was associated with the racial stereotype in the public mind of the East and South European immigrant as lazy and inclined to violence and espousing anarchy. The fear and suspicion of these "undesirable" immigrants, together with a desire to disarm labor organizers, led to a concerted campaign by organizations such as the Immigration Restriction League and the American Protective Association, for the enactment of a flat ban on the ownership of firearms, or at least handguns, by aliens. Kates, supra, Toward A History of Handgun Prohibition in the United States, at 15-16.

In 1911, New York enacted the Sullivan law. N.Y. PENAL LAW § 1897 (Consol. 1909)(amended 1911). "Of proven success in dealing with political dissidents in Central European countries, this system made handgun ownership illegal for anyone without a police permit." Kates, supra, Toward A History of Handgun Prohibition in the United States, at 15. The New York City Police Department thereby acquired the official and wholly arbitrary authority to deny or permit the possession of handguns; which the department used in its effort to disarm the city's Italian population. The Sullivan law was designed to

strike hardest at the foreign-born element ... . As early as 1903 the authorities had begun to cancel pistol permits in the Italian sections of the city. This was followed by a state law of 1905 which made it illegal for aliens to possess firearms 'in any public place'. This provision was retained in the Sullivan law.

NY City makes it illegal to carry a licensed handgun outside of NYC for any reason except hunting
CLICK HERE TO SEE THE NEWSLETTER ARTICL
(Click here to see a gif file, (173kb,)of the reply letter)

On 11/4/02 I sent the following letter:

Cpt. Roy Richter
One Police Plaza
New York, NY 10038

Dear Cpt. Richter:

I have two question.
First:
New York City has started only issuing a PREMISES LICENSE and your web site states:
Licensees may also transport their handguns and ammunition in SEPARATE LOCKED CONTAINERS, DIRECTLY to and from an authorized range, or hunting location. HANDGUNS MUST BE UNLOADED WHEN TRANSPORTING.
QUESTION 1: Is the new PREMISES LICENSE valid throughout New York State so that a person with a new PREMISES LICENSE can legally travel to public ranges or private clubs or land within the rest of New York State without being arrested or having his/her guns confiscated because they do not hold a valid license?

Second:
NY State Penal Law Section 400 contains the following:
6. License: validity. ... A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city.

QUESTION 2: How can someone from another county in New York State get a special permit that would allow them to carry a handgun to a range in NY City for practice or competition?

On 12/5/02 I got the following reply:

The City of New York Police Department
License Division
One Police Plaza, Room 110
New York, NY 10038
(646) 610-5560

December 2,2002

George W. Rogero
P .0. Box 340
Washingtonville, NY 10992
Dear Mr. Rogero:

    Your letter to Captain Richter concerning premise handgun licenses has been referred to me for reply. In response to your first question regarding the validity of New York City premise licenses outside the City, please note that a premise license issued by the New York City Police Department is limited as to place of possession, and therefore would not be valid outside the licensed premises. There are two exceptions to this rule, however. A licensee may transport his licensed handgun unloaded, in a locked container with the ammunition carried separately while travelling to or from an authorized range or shooting club in New York City. The other exception covers New York City premise licenses with a hunting authorization. Those licensees may transport their licensed handgun to an authorized area designated by the New York State Fish and Wildlife law. Again, the handgun must be transported unloaded, in a locked container with the ammunition carried separately.
     Regarding your second question, the New York City Police Department only issues special validations for business carry and carry guard/security licenses issued by counties outside of the City of New York. As the New York City Police Department no longer issues target licenses, it will not validate a target license issued by another county.
     If you would like further information regarding this matter, you may contact either Sergeant Michael Marten or Sergeant Christopher Montagna of my staff. They can be reached at 646-610-5551.

Yours truly yours
Thomas M. Prasso
Director


Case filed in Federal Court to force NY to allow non-residents to apply for a pistol license
Information supplied by Michael B. Justice at rantpipe dot com
CLICK HERE TO SEE THE FILES IN pdf
U.S. District Court
Northern District of New York (Albany)
CIVIL DOCKET FOR CASE #: 02-CV-1500
Bach v. Pataki, et al
Filed: 11/29/02

      A case was recently filed in the US District Court (Northern District NY) attempting to prevent the state from enforcing the section(s) of law that prevent a non-resident from applying for a pistol license.
      The Memorandum of Law alone is a pretty good read. You can download the contents at:   http://www.rantpipe.com/NYPistol/BachVPataki/
      All the files in the docket are available in .PDF format. I downloaded the files from the Pacer system - a pay per page file system maintained by the federal court system.

2nd Circuit Upholds New York Handgun Limits
Tuesday May 10, 2:59 am ET
Mark Hamblett, New York Law Journal
Law.com

New York state's handgun licensing scheme does not violate the Second Amendment to the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals has ruled.

Upholding the dismissal of a suit brought by an out-of-state resident barred from being allowed to carry a handgun under the licensing scheme, the circuit also found in Bach v. Pataki, 03-9123, that the Privileges and Immunities Clause of Article IV "cannot preclude New York's residency requirement in light of the State's substantial interest in monitoring handgun licenses."

Judge Richard Wesley wrote the opinion for the unanimous three-judge panel.

The suit was brought by David D. Bach, a Virginia resident who is licensed in that state to carry his Ruger P-85 9mm pistol. Bach wanted to bring the weapon with him during regular visits to his parents in upstate New York.

Bach works as a lawyer with the Navy's Office of the General Counsel. He also holds a Department of Defense top security clearance, is a commissioned officer in the U.S. Naval Reserve and is a veteran Navy SEAL.

He claimed that he wanted to carry the weapon because during the trips to see his parents, he and his family travel through areas with extremely high crime rates. Bach reported reading about "unarmed law-abiding citizens being slain by sadistic predators despite the exceptional efforts of law enforcement."

After being informed by the New York State Police that he would not be eligible for an exemption from the rule that out-of-state residents cannot obtain permits to carry handguns, Bach filed suit in the Northern District.

But his claims that the bar on nonresident permits violated the Second Amendment's "right to keep and bear arms" and the Privileges and Immunities Clause were dismissed by Northern District Judge Norman A. Mordue.

Mordue held that Bach could not allege a constitutional right to bear arms because the "Second Amendment is not a source of individual rights." And the Privileges and Immunities Clause was not violated by the permit rule, he said, because "the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable."

The 2nd Circuit panel said that New York regulates handguns primarily through Article 265 of the Penal Law, which creates a general ban on handgun possession, and Article 400 which carves out an exemption for licensed use of handguns.

Judge Wesley noted that Bach had asked the 2nd Circuit to declare the right to keep and bear arms to be an individual, rather than a collective right. In doing so, he invoked dicta in a 2001 5th Circuit case (U.S. v. Emerson, 270 F.3d 203) and a U.S. Department of Justice Office of Legal Counsel opinion.

STATE'S ARGUMENT

New York state countered by arguing that the Second Amendment is only a guarantee to the states of "the collective right to fortify their respective 'well regulated' militias."

"Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate," Wesley said. "Instead, we hold that the Second Amendment's 'right to keep and bear arms' imposes on only federal, not state, legislative efforts."

In so holding, Wesley said the 2nd Circuit was joining five other circuits, and it was following the lead of the U.S. Supreme Court in Presser v. Illinois, 16 U.S. 2252 (1886), which he said "stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states."

As to Bach's argument that the handgun law discriminates against nonresidents with regard to a protected privilege under the Privileges and Immunities Clause, Wesley said the court was rejecting that challenge because "New York's interest in monitoring gun licenses is substantial and New York's restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interested."

That monitoring interest, he said, is "in essence, an interest in continually obtaining relevant behavioral information" -- licensing officers having the power to revoke licenses for "poor judgment" based, in part, on local incidents.

Wesley said that the rationale for monitoring is "distinct from rationales rejected in other Privileges and Immunities Clause cases."

"Most importantly, the monitoring rationale is not an interest of merely 'general concern,' to which a resident/nonresident distinction would not be tailored, but, rather, actually turns on where a person spends his or her time," he said, and the fact that there is an exception to the rule for nonresidents working in-state "is consistent with this criterion."

Judges Jon Newman and Joseph McLaughlin joined in the opinion.

Kevin J. Miller and David C. Frederick of Kellogg, Huber, Hansen, Todd & Evans in Washington, D.C., represented Bach, who was of counsel for the case.

Assistant Solicitor General Frank Brady, Deputy Solicitor General Daniel Smirlock, Senior Assistant Solicitor General Nancy A. Spiegel and Attorney General Eliot Spitzer represented the state.


Descriptions of some state gun cases

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