New York State Constitution
Legal Information Institute, Cornell Law School
BATF's list of gun laws in NY including some cities
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.
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
(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.
CURRENT NY STATE LICENSE FORM
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
|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 .) 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 .) 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.|
1. Bach v. Pataki 408 F. 3d 75 US 2nd Circuit (2005)-- 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
HERE TO LINK TO A LIST OF JUST ABOUT EVERY CASE
THAT YOU WOULD EVER WANT TO SEE DEALING WITH GUNS.
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/
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.
TO FIND NY CITY LAWS
Go to: http://public.leginfo.state.ny.us/menuf.cgi
5th Amendment, Self-Incrimination,
& Gun Registration
SOME NEW YORK STATE APPEAL COURT RULINGS RELATED TO HANDGUN LICENSES
Williams v Bratton
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
LINKS TO CASES
S 8234 / A 11535
IN THE MATTER OF BELINDA G. EDDY v. HON. PATRICK L. KIRK,
|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.
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
|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[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.
A licensing officer will issue a license to possess and carry a concealed firearm only when "proper cause exists" (see, Penal Law § 400.00[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; 400.00). 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). 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[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[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.
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."
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.
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.
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.
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?
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
One Police Plaza, Room 110
New York, NY 10038
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
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
in Federal Court to force NY to allow non-residents to apply for a pistol
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
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.
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.
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.