BY Herschel Smith

9 years ago

In the Southern district of New York, Judge Cathy Seibel has taken draconian action regarding second amendment rights, but before we get to that, let’s briefly rehearse just where the decisions in Heller and McDonald have left us.

In Revisiting the Second Amendment Right to Bear Arms, we discussed how state judges in Illinois, Maryland, Massachusetts and New York have ruled recently that there is no constitutional right to carry a loaded gun for self-defense. And in Virginia, the U.S. 4th Circuit Court of Appeals upheld the federal conviction of a man who fell asleep in his car near Washington’s Reagan National Airport with a loaded gun. This last case of falling asleep in a car is the case of Sean Masciandaro, who was on National Park land and didn’t remove ammunition from his weapon and move it from the proximity of his weapon (e.g., place it in a remote location such as the trunk). In the Petition for Write of Certiorari to the Supreme Court on his behalf, it is observed that:

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011). The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. 9 For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home. Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

But if the stolid state courts believe personal possession (outside of your domicile) is an open question in the wake of Heller and McDonald, Judge Cathy Seibel has gotten rather assertive concerning what she believes concerning our rights.

In a precedent setting case, a federal judge has ruled that individuals do not have a constitutional right to carry a concealed handgun in public. The decision was rendered in the case of Kachalsky, et.al v. Cacace, et.al in the Southern District of New York. The Attorney General’s office represented four state court judges who had been named as defendants in the case. who also serve as “licensing officers” under the New York statute. Five individual plaintiffs residing in Westchester County, and one organization, the Second Amendment Foundation Inc., argued that the “proper cause” provision of the New York law governing the issuance of licenses to carry concealed handguns in public violates their rights under the Second Amendment to the U.S. Constitution as defined in two recent landmark decisions by the United States Supreme Court, District of Columbia v. Heller and McDonald v. City of Chicago. The “proper cause” provision requires a license applicant to show “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.” The Attorney General’s office argued that the “proper cause” provision of the New York law did not violate the Second Amendment as described by the Supreme Court in Heller and McDonald. Judge Cathy Seibel agreed, ruling that the Second Amendment provides the right to keep arms for the purpose of self defense in the home, but does not extend to a right to carry concealed handguns in public. The judge further ruled that even if the Second Amendment were read to cover such a right, the New York”proper cause” provision passes constitutional muster under the Heller and McDonald rulings because the law is substantially related to important governmental interests, namely the promotion of public safety and the prevention of crimes perpetrated with concealed handguns.

Possession of firearms isn’t a right, it’s a privilege granted by state review of your specific need. The combination of progressive judges, the failure of the public to assert constitutional rights, and muddled, short-sighted decisions by the Supreme Court has led us to a state of near anarchy in lower court decisions concerning the second amendment. The need of hour is for citizens to be diligent, and for the Supreme Court to be clear in their next ruling on the second amendment.