By Robert Phillips, Deputy District Attorney (Ret).

Second Amendment Update; New York’s Restrictive Permit Requirements.

A statute that requires a “special need” to carry a concealed pistol or revolver in public violates the Second and Fourteenth Amendments to the U.S. Constitution.

The United States Supreme Court just struck down an arguably overly restrictive New York statute that made it a crime to possess a firearm without a license outside one’s home. The new case is New York State Rifle Association, Inc., et al. v. Bruen (June. 23, 2022) __ U.S.__ [__ S.Ct. __; __ L.Ed.2nd __; 2022 U.S. LEXIS 3055].  Pursuant to New York’s statute (N. Y. Penal Law Ann. §400.00), an individual who wants to carry a firearm outside his home would have to obtain an unrestricted license to “have and carry” a concealed “pistol or revolver,” such a license being available to that person only if he or she could show that “proper cause exists” for doing so. (Italics added; Subd. (2)(f ))  An applicant was able to  satisfy the “proper cause” requirement only if he or she could “demonstrate a special need for self-protection distinguishable from that of the general community.” (Italics added)  In other words, merely wanting to carry a concealed firearm outside the home for general self-protection was not enough.  You would have to show a specific reason for needing to do so.  The federal Second Circuit of Appeal some ten years ago upheld the constitutionality of New York’s concealed weapons restrictions in Kachalsky v. County of Westchester (2nd Cir. 2012) 701 F. 3rd 81.  Historically, lower courts over time have developed a “two-step” analysis in determining the constitutionality of restrictive firearms statutes.  According to these cases, a court would have to first consider the “text and history” of a statute to determine “whether the regulated activity falls within the scope of the Second Amendment.” If it does, then the courts were to go on to the second step and consider “the strength of the government’s justification for restricting or regulating” the Second Amendment right. The Supreme Court ruled here in this new case that this is one step too many.  In eliminating the second step, the Supreme Court ruled here that a court need only find that a firearms regulation “is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”  New York’s statute at issue here fails this test.  The Supreme Court has already held that the Second and Fourteenth Amendments protect an individual’s right to keep and bear arms for self-defense.  (See District of Columbia v. Heller (2008) 554 U.S. 570, and McDonald v. Chicago (2010) 561 U.S. 742.) Finding that “individual self-defense is ‘the central component’ of the Second Amendment right,” history fails to support any requirement that an applicant for a permit to carry a concealed firearm show a special need to do so.  The Court therefore held that the need to show some special need above and beyond a general desire to defend oneself is not supported by any historical analysis. As such, New York’s more restrictive statute is unconstitutional.  This ruling appears on its face to draw into question California’s very similar requirement that in order to obtain a CCW permit, you must be able to show something more than a mere general need for self-defense.  So stay tuned for challenges to California’s restrictive CCW permit requirements.