Appendix — Bach v. Pataki

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals for

the Second Circuit, Bach v. Pataki, et al., No. 03-

a sonunsnooneescoronssorsorces la

Opinion of the United States District Court for

the Northern District of New York, Bach v.

Pataki, et al., No. 02-CV-1500 (Sept. 23, 2003) .............. 34a

Order of the United States Court of Appeals for

the Second Circuit Denying Rehearing, Bach v.

Pataki, et al., No. 03-9123 (July 21, 2005).................eeee. 54a

Constitutional and Statutory Provisions

Involved:

United States Constitution:

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Art. IV, § 2 (Privileges and Immunities

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United States Code:

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New York Penal Law:

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as srssenvodoenetecouesente’ 68a

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ES EE SRE 83a

a scsusuesvpnnnetorvosevis 99a

Letter from Supreme Court Clerk regarding

extension request for filing a petition for a writ of

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 03-9123

DAVID D. BACH,

Plaintiff-Appellant,

v.

GEORGE PATAKI, IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF NEW YORK, ET AL..,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of New York

[Argued Oct. 1, 2004]

[Decided May 6, 2005]

Before: NEWMAN, McLAUGHLIN, and WESLEY, Cir-

cuit Judges.

WESLEY, Circuit Judge:

“The powers delegated by the . . . constitution to the fed-

eral government|] are few and defined. Those which are

to remain in the state governments are numerous and in-

definite.”’ This case concerns whether the Constitution

requires New York to offer handgun licenses to visitors.

I

David Bach, a Virginia resident and domiciliary, wants

to carry his Ruger P-85 9mm pistol while visiting his

' THE FEDERALIST NO. 45 (James Madison).

2a

parents in New York.’ He has a permit from the Com-

monwealth of Virginia to carry a concealed weapon. Bach

is a model citizen — he holds a Department of Defense top

secret security clearance, is a commissioned officer in the

United States Naval Reserve, a veteran Navy SEAL, a

lawyer employed by the Navy’s Office of the General

Counsel, a father of three, and, perhaps most laudably, a

son who regularly visits his parents in upstate New York.

“During the ten-hour drive between Virginia and Upstate

New York, [his] family and [he] travel on dimly lit rural

roads and busy streets and highways[,] some of which are

in densely populated areas that have extremely high vio-

lent crimes rates.”* Bach has read “about unarmed, law-

abiding citizens being slain by sadistic predators despite

the exceptional efforts of law enforcement” and believes

that carrying a pistol will help him protect his family.

However, as a nonresident without New York State em-

ployment, Bach is not eligible for a New York firearms li-

cense. The State Police informed Bach that “no exemption

exists which would enable [him] to possess a handgun in

New York State” and that “[t]here are no provisions for the

issuance of a carry permit, teroporary or otherwise, to

anyone not a permanent resident of New York State nor

does New York State recognize pistol permits issued by

other states.” The State Police further explained that per-

sons “who maintain seasonal residen{[ce] in New York

State likewise are not eligible for a New York State Pis-

tol Permit” and warned Bach that if he were found in

2 Because Bach’s case was dismissed under Federal Rule of Civil

Procedure 12(b)(6), we take the facts as set forth in the complaint. See

Ortiz v. McBride, 380 F.3d 649, 651 (2d Cir.2004).

3 Judging from available data, the sooner Bach reaches the New

York area, the safer he will be. FBI statistics show that in 2003 the

metropolitan areas surrounding and including New York City reported

an average violent crime rate of 483.3 per 100,000 inhabitants, com-

pared to rates of 487.1 per 100,000 inhabitants in the greater Wash-

ington, DC area, 609.4 per 100,000 in the greater Philadelphia area,

and 883.0 per 100,000 in the greater Baltimore area. See FBI, CRIME

IN THE UNITED STATES 95, 114, 116, 126 (2003).

3a

possession of his pistol in New York he “would be subject

to automatic forfeiture of the firearm in question and

criminal prosecution.”

Bach filed this action against State and local officials to

contest his exclusion from New York’s licensing scheme.

His complaint requests that the district court declare New

York’s licensing laws unconstitutional, facially and as ap-

plied, in violation of both the “right to keep and bear arms”

set out in the Second Amendment and the Privileges and

Immunities Clause of Article IV of the United States

Constitution.

Defendants moved to dismiss, and the district court

granted the motion. The court concluded Bach had stand-

ing because he “ha[d] made a substantial showing that ap-

plication for the permit would have been futile.” Bach v.

Pataki, 289 F.Supp.2d 217, 223 (N.D.N.Y.2003) (citing

Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.

1997)). The court held that Bach could “prove no set of

facts which would entitle him to relief.” Jd. at 229 (citing

Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994)). Spe-

cifically, the court explained that Bach could allege no con-

stitutional “right to bear arms” because “the Second

Amendment is not a source of individual rights,” id. at

225-26, and that New York’s licensing scheme did not vio-

late the Privileges and Immunities Clause of Article IV

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,” id. at 228 (citing People v. Perez, 67 Misc.2d

911, 912, 325 N.Y.S.2d 183 (Onondaga County Ct.1971)).

The court rejected Bach’s remaining claims as meritless,

id. at 228-29, and entered judgment for the State defen-

dants. Bach seeks review of the dismissal of his Second

Amendment and Article [IV Privileges and Immunities

Clause claims. We affirm.

4a

Il

A

New York State has regulated the possession of weapons

since 1849. That year, the State criminalized possession of

the “slung shot.”* See 1849 Laws of N.Y., ch. 278, § 2, at

403-04 (repealed 1886). Thirty-five years later, New York

instituted a statewide licensing requirement for minors

carrying weapons in public, see 1884 Laws of N.Y., ch. 46,

§ 8, at 47,° and soon after the turn of the century, the

State expanded its licensing requirements to include all

persons carrying concealed pistols, see 1905 Laws of N.Y.,

ch. 92, § 2, at 129-30. With the passage of the Sullivan Act

in the spring of 1911, New York’s licensing requirement

applied to all persons possessing pistols or any other fire-

arm small enough to be carried concealed. See 1911 Laws

of N.Y., ch. 195, § 1, at 443 (codifying N.Y. Penal Law

§ 1897, § 3).

The State’s earliest firearms-licensing statutes dele-

gated licensing to municipalities. See, e.g., 1884 Laws of

N.Y., ch. 46, § 8; 1905 Laws of N.Y., ch. 92, § 2, at 242-43;

1908 Laws of N.Y., ch. 93, § 1. When the State first estab-

lished statewide application requirements, it limited li-

censes to “have and carry concealed” to those “citizen[{s] of

and usually a resident in the state of New York,” but per-

mitted the licensing official — judges in most parts of the

State, but the police commissioner in New York City — to

make an exception, so long as the officer received certifi-

cates of good moral character regarding the applicant and

* In late 1840's America, the term “slung shot” — slung being the

past participle of sling — described a “shot, piece of metal, stone, etc.,

fastened to a strap or thong, and used as a weapon.” OXFORD ENGLISH

DICTIONARY 759 (2d ed.1989).

° The 1884 law amended section 410 of the Penal Code to provide, in

part, “[AJny person under the age of eighteen years who shall have,

carry or have in his possession in any public street, highway or place in

any city of this state, without a written license from a police magistrate

of such city, any pistol or other fire-arm of any kind, shall be guilty of a

misdemeanor.”

5a

the official “state[d] in such license the particular reason

for the issuance thereof.” See N.Y. Penal Code § 1897(9)

(1927).

In 1963, New York altered its statewide licensing proce-

dures, making two significant and related changes. First,

it granted licensing officers the authority to revoke li-

censes “at any time.” See 1963 Laws of N.Y., ch. 136, § 8

(codifying N.Y. Penal Code § 1903(11), now § 400.90(11)).

Second, it limited carry licensees to New York residents

and in-state employees. Jd. (codifying N.Y. Penal Code

§ 1903(3), now § 400.00(3)). As explained below, the li-

censing officers’ revocation authority and the residency

requirement remain features of the current statutory

regime.

B

Today, New York regulates handguns primarily though

Articles 265 and 400 of the Penal Law. Article 265 creates

a general ban on handgun possession, see, e.g., N.Y. Penal

Law §§ 265.01(1), 265.02(4), with specific exemptions

thereto, see N.Y. Penal Law § 265.20. The exemption at

issue here is a licensed use exemption defined in Article

400: “[the pjossession of a pistol or revolver by a person to

whom a license therefor has been issued.” N.Y. Penal Law

§§ 265.20(3) (referencing sections 400.00 and 400.01).

Article 400 of the Penal Law “is the exclusive statutory

mechanism for the licensing of firearms in New York

State.” O'Connor v. Scarpino, 83 N.Y.2d 919, 920, 615

N.Y.S.2d 305, 638 N.E.2d 950 (1994). Licenses are limited

to persons over twenty-one, of good moral character, with-

out a history of crime or mental illness, and “concerning

whom no good cause exists for the denial of the license.”

N.Y. Penal Law § 400.00(1). There are several types of

pistol and revolver licenses, including licenses for house-

hold possession, see N.Y. Penal Law § 400.00(2)(a), for

workplace possession, see N.Y. Penal Law § 400.00(2)(b),

and to “have and carry concealed,” see N.Y. Penal Law

6a

§ 400.00(2)(f). The last, a carry license, may issue only for

“proper cause.”© Id.

Licensing is a rigorous and principally local process that

begins with the submission of a signed and verified appli-

cation to a local licensing officer. See N.Y. Penal Law

§ 400.00(3). Applicants must demonstrate compliance

with certain statutory eligibility requirements as well as

any facts “as may be required to show the good character,

competency and integrity of each person or individual

signing the application.” N.Y. Penal Law § 400.00(3).

Every application triggers a local investigation. See N.Y.

Penal Law § 400.00(4). “[T]he police authority of the city

or county where the application is made is responsible for

investigating the statements in the application.” 1986

N.Y. Op. Atty. Gen. (Inf.) 120, 1986 N.Y. AG LEXIS 26, at

*1-*2. Local police, therefore, investigate applicants’ men-

tal health history, criminal history, moral character, and,

in the case of a carry license, representations of proper

cause. See N.Y. Penal Law § 400.00(1)-(4). Police officers

also take applicants’ fingerprints and check them against

the records of the State Division of Criminal Justice Ser-

vices and the FBI. See N.Y. Penal Law § 400.00(4). Upon

completion of the investigation, the police authority re-

ports its results to the licensing officer. See id. -

® New York requires a carry license for the concealed and open car-

rying of firearms. See N.Y. Penal Law §§ 265.01, 265.02, 400.00(2)(d)-

(f). This general approach to the concealed and open carrying of fire-

arms is distinct from that of some other States, which have laws spe-

cifically addressing the carrying of concealed firearms. See, e.g., Cal.

Penal Code § 12025 (defining crime of “carrying a concealed firearm”

and explaining that “[f]irearms carried openly in belt holsters are not

concealed”); Va. Code Ann. § 18.2-308(A) (defining crime of “carr[ying]

about [one’s] person, hidden from common observation, . . . any pistol”);

see also N.Y. Joint Legislative Comm. on Firearms & Ammunition,

N.Y. Legislative Doc. No. 29 at 13 (N.Y.1962) (“{T]he historic factor of

whether the firearm is carried openly or concealed has frequently been

decisive. Apparently in only nine (Conn., D.C., Hawaii, Ind., Mass.,

N.M., N.Y., Tex., W.Va.) of the forty-five prohibiting jurisdictions does

the prohibition extend to openly carried firearms.”).

7a

Local licensing officers, often local judges,’ have consid-

erable discretion in deciding whether to grant a license

application. See, e.g., Vale v. Eidens, 290 A.D.2d 612, 735

N.Y.S.2d 650 (8d Dep’t 2902); Kaplan v. Bratton, 249

A.D.2d 199, 673 N.Y.S.2d 66 (1st Dep’t 1998); Fromson v.

Nelson, 178 A.D.2d 479, 577 N.Y.S.2d 417 (2d Dep’t 1991);

Marlow v. Buckley, 105 A.D.2d 1160, 482 N.Y.S.2d 183

(4th Dep’t 1984). The officer may deny an application for

any “good cause,” see N.Y. Penal Law § 400.00(1)(g); Bando

v. Sullivan, 290 A.D.2d 691, 691-92, 735 N.Y.S.2d 660 (3d

Dep’t 2002), may deny a carry license for an absence of

what the officer deems “proper cause,” see N.Y. Penal Law

§ 400.00(2)(f),® and may restrict a carry license “to the

purposes that justified the issuance,” O’Connor, 83 N.Y.2d

at 921, 615 N.Y.S.2d 305, 638 N.E.2d 950. Licensing offi-

cers can deny applications where they find an applicant’s

personal background troubling. See, e.g., Vale, 290 A.D.2d

at 613, 735 N.Y.S.2d 650; Fromson, 178 A.D.2d at 479, 577

7 “Licensing officer’ means in the city of New York the police com-

missioner of that city; in the county of Nassau the commissioner of

police of that county; in the county of Suffolk the sheriff of that county

except in the towns of Babylon, Brookhaven, Huntington, Islip and

Smithtown, the commissioner of police of that county; for the purposes

of section 400.01 of this chapter the superintendent of state police; and

elsewhere in the state a judge or justice of a court of record having his

office in the county of issuance.” N.Y. Penal Law § 265.00(10).

® Licensing officers have great discretion in defining a “proper cause”

threshold. For instance, the New York Court of Appeals left undis-

turbed a licensing officer's conclusion that good moral character plus a

desire to carry a weapon would not alone establish “proper cause.” See

Moore v. Gallup, 293 N.Y. 846, 59 N.E.2d 439 (1944) (per curiam), a/ff'g

267 A.D. 64, 66, 45 N-Y.S.2d 63 (3d Dep't 1943) (upholding licensing

officer's determination that “a dangerous and unwise precedent would

be established if all citizens of good moral character were to be licensed

to carry pistols upon a simple showing o° a desire . . . to engage in un-

regulated and unsupervised target practice”). In New York City, “the

mere fact that an applicant has been the victim of a crime or resides in

or is employed in a ‘high crime area,’ does not establish ‘proper cause’

for the issuance of a carry ... license.” 38 New York City Rules and

Regulations § 5-03 (example); see Theurer v. Safir, 254 A.D.2d 89, 90,

680 N.Y.S.2d 87 (1st Dep’t 1998).

8a

N.Y.S.2d 417. A licensing officer may also deny a carry

license for lack of “proper cause” if, inter alia, the appli-

cant does not “sufficiently demonstrate a special need for

self-protection distinguishable from that of the general

community or of persons engaged in the same profession.”

Williams v. Bratton, 238 A.D.2d 269, 270, 656 N.Y.S.2d

626 (1st Dep’t 1997) (quoting Klenosky v. New York City

Police Dep't, 75 A.D.2d 793, 428 N.Y.S.2d 256 (1st Dep't

1980), aff'd 53 N.Y.2d 685, 439 N.Y.S.2d 108, 421 N.E.2d

503 (1981)); see also Bando, 290 A.D.2d at 693, 735

N.Y.S.2d 660. A licensing officer’s decision wil] not be dis-

turbed unless it is arbitrary and capricious. See O’Brien v.

Keegan, 87 N.Y.2d 436, 439-40, 639 N.Y.S.2d 1004, 663

N.E.2d 316 (1996); see also Bando, 290 A.D.2d. at 692, 735

N.Y.S.2d 660.°

A licensing officer is also “statutorily invested with the

power to sua sponte revoke or cancel a license.” O’Brien,

87 N.Y.2d at 439, 639 N.Y.S.2d 1004, 663 N.E.2d 316

(1996) (citing N.Y. Penal Law § 400.00(11)).'° He enjoys

wide discretion in exercising this “extraordinary power,”

- O'Brien, 87 N.Y.2d at 439, 639 N.Y.S.2d 1004, 663 N.E.2d

316; see, e.g., Gerard v. Czajka, 307 A.D.2d 633, 762

N.Y.S.2d 533 (3d Dep’t 2003); Biganini v. Gallagher, 293

A.D.2d 603, 742 N.Y.S.2d 73 (2d Dep’t 2002), which may

be exercised at “any time,” N.Y. Penal Law § 400.00(11),

and includes the prerogative “to monitor carry licenses he

* Licensing officers exercise such great discretion in denying carry

licenses that one commentator has argued that the licensing system

might violate the New York State Constitution. See Suzanne Novak,

Why The New York State System For Obtaining A License To Carry A

Concealed Weapon Is Unconstitutional, 26 FORDHAM URB. L.J. 121, 165-

66 (1998) (arguing that “[t]he sole ‘proper cause’ standard for the issu-

ance of a carry license is the equivalent of a standardless delegation,

which, in effect, grants ... officials the discretion to apply their own

public policy on gun control”).

'©“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” for

revocation purposes pursuant to section 400.00(11). O’Brien, 87 N.Y.2d

at 439, 639 N.Y.S.2d 1004, 663 N.E.2d 316.

9a

has issued to ensure that the basis for issuance of the li-

cense remains,” 1991 N.Y. Op. Atty. Gen. (Inf.) 72, 199i

N.Y. AG LEXIS 84, *3.

An officer’s revocation decision may be triggered by local

incidents;"’ in light of the highly destructive potential of a

firearm, local officials may revoke a license if a licensee

engages in behavior that portends of future problems.

Thus, where a licensee told fellow graduate students that

he was “one step away from Smith & Wesson time,”

Gerard, 307 A.D.2d at 633, 762 N.Y.S.2d 533, the local po-

lice department’s report of the incident caused the licens-

ing officer to revoke the license, id. at 633-34, 762

N.Y.S.2d 533. In another instance, a licensing officer re-

voked a license after local law enforcement reported that

the licensee had appeared in an “agitated state while in

possession of a loaded pistol when the officer responded to

a report of poachers on [the licensee’s] property.” Finley v.

Nicandri, 272 A.D.2d 831, 831, 708 N.Y.S.2d 190 (8d Dep’t

2000).'* Local incidents may also lead a licensing officer to

conclude that a licensee lacks the mental fitness to con-

tinue to possess a firearm and to revoke the license on that

basis. See Harris v. Codd, 57 A.D.2d 778, 394 N.Y.S.2d

210 (1st Dep’t 1977).

1! New York law provides for the transfer of a licensee’s records to

any new place of residence within the State. See N.Y. Penal Law

§ 400.00(5); see also 1978 N.Y. Op. Atty. Gen. (Inf.) 83, 1978 N.Y. AG

LEXIS 199 (concluding that original records, not copies, should be

transferred).

'2 Likewise, Paul Lang had his license revoked where he “showed

poor judgment by failing to safeguard his weapon while accompanying

a Boy Scout troop,” Lang v. Rozzi, 205 A.D.2d 783, 783, 614 N.Y.S.2d

41 (2d Dep’t 1994), Abraham Ehrlich’s license was revoked after carry-

ing his pistol in a social setting while intoxicated, see Jn re Ehrlich, 99

A.D.2d 545, 545, 471 N.Y.S.2d 628 (2d Dep't 1984), and Mikhail Zal-

manov lost his license after failing to safeguard his gun, carrying it

with him after work while socializing, and displaying it in a threaten-

ing manner, see Zalmanov v. Bratton, 240 A.D.2d 173, 173, 657

N.Y.S.2d 691 (1st Dep't 1997).

10a

Licensing is thus a locally controlled process. The only

nonresidents eligible for a license are local workers, who

may apply to the licensing officer in the city or county of

their principal employment or principal place of business.

See N.Y. Penal Law § 400.00(3)(a). Section 400.00(3)(a)

provides:

Applications shall be made and renewed, in the case

of a license to carry or possess a pistol or revolver, to

the licensing officer in the city or county, as the case

may be, where the applicant resides, is principally

employed or has his ——" place of business as

merchant or storekeeper . .

Id. The statute does not ‘iui a mechanism for any

other nonresident applications. One New York appellate

court has explained that nonresident applications would

be inconsistent with “the purposes underlying the pistol

permit procedures, namely, to insure that only persons of

acceptable background and character are permitted to

carry handguns and to provide a method for reporting in-

formation on the identity of persons possessing weapons

and the weapons themselves... .” Mahoney v. Lewis, 199

A.D.2d 734, 735, 605 N.Y.S.2d 168 (8d Dep’t 1993). Non-

residents without in-state employment are completely ex-

cluded from the license-application procedure.'*

Some classes of nonresidents may nonetheless possess or

carry handguns in New York. Although New York gener-

ally “does not recognize or give effect to licenses to carry

firearms issued by ... other state[s],”1997 N.Y. Op. Atty.

Gen. 14, federal law grants a limited right to transport

unloaded firearms through the State.'* Additionally,

'S New York courts have limited resident applications to persons

who are New York domiciliaries. See id. (rejecting application of a

New York property owner with his principal residence in Toms River,

New Jersey); cf. In re Davies, 133 Misc.2d 38, 41, 506 N.Y.S.2d 626

(Oswego County Ct.1986) (limiting application to locality “where the

applicant maintains his or her permanent or principal home’).

'4 18 U.S.C. § 926A provides: “Notwithstanding any other provision

of any law or any rule or regulation of a State or any political subdivi-

lla

Article 265 sets forth a number of provisions permitting

nonresidents to possess or carry firearms. For instance,

police officers of other States may possess pistols while

conducting official business in New York, see N.Y. Penal

Law § 265.20(a)(11), and nonresidents licensed within

their own States may use pistols in competitive shooting

matches in New York, see N.Y. Penal Law § 265.20(a)(13).

These exemptions exist apart from the licensing exemp-

tion.

Ill

Bach never applied for a New York handgun license,

and, before the district court, defendants contended that

Bach’s claims were not justiciable because Bach accord-

ingly lacked “standing”’ See Bach, 289 F.Supp.2d at 223.

The district court rejected this argument. See id. Defen-

dants do not renew that challenge on appeal, but, as it

concerns the subject matter jurisdiction of the district

court, we consider it in any event. See FW/PBS, Inc. v.

City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 107

L.Ed.2d 603 (1990); see also Pashaian v. Eccelston Props.,

sion thereof, any person who is not otherwise prohibited by this chap-

ter from transporting, shipping, or receiving a firearm shall be entitled

to transport a firearm for any lawful purpose from any place where he

may lawfully possess and carry such firearm to any other place where

he may lawfully possess and carry such firearm if, during such trans-

portation the firearm is unloaded, and neither the firearm nor any

ammunition being transported is readily accessible or is directly acces-

sible from the passenger compartment of such transporting vehicle:

Provided, That in the case of a vehicle without a compartment separate

from the driver's compartment the firearm or ammunition shall be con-

tained in a locked container other than the glove compartment or con-

sole.”

'S Defendants’ “standing” objection might also be understood as a

ripeness challenge. See Brennan v. Nassau County, 352 F.3d 60, 65 (2d

Cir.2003); Berger v. Heckler, 771 F.2d 1556, 1562 n. 8 (2d Cir.1985); see

also ERWIN CHEMERINSKY, FEDERAL JURISDICTION (4th ed.) § 2.4, at 114

(“[S]tanding focuses on whether the type of injury alleged is qualita-

tively sufficient to fulfill the requirements of Article II] and whether

the plaintiff has personally suffered that harm, whereas ripeness cen-

ters on whether that injury has occurred vet.”).

12a

Ltd., 88 F.3d 77, 82 (2d Cir.1996); Petereit v. S.B. Thomas,

Inc., 63 F.3d 1169, 1175 (2d Cir.1995). We hold that

Bach’s failure to file a license application does not pose an

obstacle to consideration of his claims.

The district court correctly noted that “‘[i]n many cases,

requiring litigants to actually apply for a license before

challenging a licensing scheme prevent(s] courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements ....’” Bach, 289

F.Supp.2d at 223 (quoting Sammon v. New Jersey Bd. of

Med. Exam’rs, 66 F.3d 639, 643 (3d Cir.1995)); see also

Prayze FM v. FCC, 214 F.3d 245, 251 (2d Cir.2000). The

district court concluded that imposing an application re-

quirement here, however, “would serve no purpose.” Bach,

289 F.Supp.2d at 223 (quoting Sammon, 66 F.3d at 643).

We agree.

The State Police informed Bach that he was statutorily

ineligible for a carry license.’® . Bach had nothing to gain

thereafter by completing and filing an application. See

Desiderio v. NASD, 191 F.3d 198, 202 (2d Cir.1999). New

York law provides only for application to the licensing offi-

cer “where the applicant resides, is principally employed,

or has his principal place of business,” see N.Y. Penal Law

§ 400.00(3)(a); Bach is neither a New York resident nor

worker. Imposing a filing requirement would force Bach to

complete an application for which he is statutorily ineligi-

ble and to file it with an officer without authority to review

it. “We will not require such a futile gesture as a prereq-

uisite for adjudication in federal court.” Williams v. Lam-

bert, 46 F.3d 1275, 1280 (2d Cir.1995); see also Sammon,

66 F.3d at 643. Bach’s claims are thus justiciable.

'® The Office of the Attorney General of the State of New York di-

rected Bach to contact the State Police with his inquiry. Bach also con-

tacted the Ulster County Sheriff's Office, and Undersheriff George A.

Wood informed him that he would not fit into the exemption for

“Iplersons in the military or other service of the United States, tn pur-

suit of official duty or when duly authorized by federal law, regulation

or order to possess the same.” N.Y. Penal Law § 265.20(1)(d).

13a

IV

Bach argues that New York’s licensing scheme unrea-

sonably infringes upon his “right to keep and bear arms”

under the Second Amendment, which provides: “A well

regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall

not be infringed.” U.S. CONST. amend. II. He contends

that the Second Amendment’s right to keep and bear arms

is a right of individual citizens, that it limits the States in

regulating firearms, and that New York’s statutory

scheme cannot withstand the resultant heightened scru-

tiny.

Bach focuses primarily on the question of whether the

right to keep and bear arms is an individual right.'’ Ap-

plying textualist and originalist approaches to interpreting

the Amendment, proffering historical and contemporary

scholarship, and buttressed by the recent conclusions of

both the Fifth Circuit and the Department of Justice, Bach

asks this Court to declare the “right to keep and bear

arms” an individual, rather than collective, right.'® De-

fendants, by contrast, construe the Amendment as merely

a “guarantee[] to the states [of] the collective right to arm

or fortify their respective ‘well regulated’ militias” and in-

sist that the Amendment “does not establish an individual

right to ‘bear arms’ for any purpose.” They respond to

Bach’s arguments in kind, offering their own textualist

'’ For a review of various contemporary approaches to this question,

see Michael Busch, Is the Second Amendment an Individual or Collec-

tive Right: United States v. Emerson's Revolutionary Interpretation of

the Right to Bear Arms, 77 St. John’s L. Rev. 345 (2003).

'8 Bach cites scholarship ranging from THOMAS M. COOLEY, THE

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF

AMERICA 298-99 (Andrew C. McLaughlin ed., 1898) (1880) to Eugene

Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793

(1998). His position reflects the opinion of the Fifth Circuit dicta in

United States v. Emerson, 270 F.3d 203, 264 (5th Cir.2001), and of the

Department of Justice’s Office of Legal Counsel in its opinion, Whether

the Second Amendment Secures an Individual Right, Op. Off. Legal

Counsel, 2004 WL 2930974.

l4a

and originalist analyses, relying on their own set of Second

Amendment scholarship, and citing decisions of our sister

circuits rejecting the individual rights interpretation.’®

The district court found the defendants’ arguments more

persuasive and concluded that Bach had “not alleged an

infringement of any Second Amendment right” because

“the Second Amendment is not a source of individual

rights.” Bach, 289 F.Supp.2d at 226.

Although the sweep of the Second Amendment has be-

come the focus of a national legal dialogue, we see no need

to enter into that debate.” Instead, we hold that the Sec-

ond Amendment’s “right to keep and bear arms” imposes a

limitation on only federal, not state, legislative efforts.”!

We thus join five of our sister circuits.””

'9 Defendants’ citations include Jack N. Rakove, The Second

Amendment: The Highest State of Originalism, 76 Chi.-Kent L. Rev.

103 (2000), and Paul Finkelman, “A Well Regulated Militia’: The Sec-

ond Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195

(2000). Various circuit courts share defendants’ conclusion. See, e.g.,

Nordyke v. King, 319 F.3d 1185, 1191-92 & n. 4 (9th Cir.2003); United

States v. Parker, 362 F.3d 1279, 1282 (10th Cir.2004).

2° Cf. Emerson, 270 F.3d at 272 (Parker, J., concurring) (“The deter-

mination whether rights bestowed by the Second Amendment are col-

lective or individual is entirely unnecessary to resolve this case and

has no bearing on the judgment we dictate by this opinion.”).

2) The district court recognized that defendants raised this argu-

ment, but it declined to address it. Bach, 289 F.Supp.2d at 225, n. 4.

22 See Thomas v. Members of the City Council of Portland, 730 F.2d

41, 42 (1st Cir.1984) (per curiam); Cases v. United States, 131 F.2d 916,

921 (1st Cir.1942) (“{T]he only function of the Second Amendment [is]

to prevent the federal government and the federal government only

from infringing that right.”); Love v. Pepersack, 47 F.3d 120, 123 (4th

Cir.1995) (“The Second Amendment does not apply to the states.”);

Edwards v. City of Goldsboro, 178 F.3d 231, 232 (4th Cir.1999) (“[T]he

law is settled in our circuit that the Second Amendment does not apply

to the States.”); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d

522, 539 n. 18 (6th Cir.1998) (“The Supreme Court has held that the

Due Process Clause of the Fourteenth Amendment does not incorpo-

rate the Second Amendment; hence, the restrictions of the Second

Amendment operate only upon the Federal Government.”); Quilici v.

Village of Morton Grove, 695 F.2d 261, 270 (7th Cir.1982) (“[T]he sec-

15a

Our holding is compelled by the Supreme Court’s opin-

ion in Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29

L.Ed. 615 (1886). In 1879, Herman Presser led four hun-

dred armed members of a society called the Lehr und Wehr

Verein through the streets of Chicago. Jd. at 253-55, 6

S.Ct. 580. Illinois’s Military Code required that any “pa-

rade with arms” be licensed by the Governor. Jd. Presser

ond amendment does not apply to the states.”); Fresno Rifle and Pistol

Club, Inc. v. Van De Kamp, 965 F.2d 723, 731 (9th Cir.1992) (“[T]he

Second Amendment limits only federal action, and we affirm the dis-

trict court’s decision ‘that the Second Amendment stays the hand of the

National Government only.’”); see also Hamilton v. Accu-tek, 935

F.Supp. 1307, 1318 (E.D.N.Y.1996) (“{T]he Second Amendment limits

only the power of Congress.”). Cf. United States v. Tot, 131 F.2d 261,

266 (3d Cir.1942) (“It is abundantly clear ... that this amendment

[was adopted] ... as a protection for the States in the maintenance of

their militia organizations against possible encroachments by the fed-

eral power.”), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87

L.Ed. 1519 (1943); Eckert v. City of Philadelphia, 477 F.2d 610, 610 (3d

Cir.1973 (per curiam); United States v. Nelsen, 859 F.2d 1318, 1320

(8th Cir.i988); United States v. Parker, 362 F.3d 1279 (10th Cir.2004).

But see United States v. Emerson, 270 F.3d 203, 221 n. 13 (5th

Cir.2001).

The New York courts also share our conclusion. They have repeat-

edly held that the Second Amendment is inapplicable to the State’s

regulation of handguns. See Moore v. Gallup, 293 N.Y. 846, 59 N.E.2d

439 (1944) (per curiam), aff’g, 267 A.D. 64, 67, 45 N.Y.S.2d 63 (3d

Dep't 1943) (“Obviously, petitioner cannot rest his case upon the Sec-

ond Amendment which is a limitation upon the exertion of the power of

Congress and the national government, but not upon that of the

State.”); Demyan v. Monroe, 108 A.D.2d 1004, 1005, 485 N.Y.S.2d 152

(3d Dep’t 1985) (“The constitutional argument, namely, that Penal Law

§ 400.00 infringes on petitioner's rights guaranteed by the U.S. Consti-

tution, 2d Amendment to keep and bear arms, has already received

considerable judicial attention and has consistently been repudiated.”);

People ex rel. Darling v. Warden of the City Prison of New York, 154

A.D. 413, 419-20, 139 N.Y.S. 277 (1st Dep't 1913) (citing People v.

Persce, 204 N.Y. 397, 403, 97 N.E. 877 (1912) (“The provision in the

Constitution of the United States that ‘the right of the people to keep

and bear arms shall not be infringed’ is not designed to control legisla-

tion by the State.”)). Cf. Brown v. City of Chicago, 42 Tll.2d 501, 504,

250 N.E.2d 129, 131 (1969) (“{Rjegulation which does not impair the

maintenance of the State’s active, organized militia is not in violation

of either the terms or the purposes of the second amendment.”)

16a

lacked a license, and was charged and convicted under the

Code. Id. Presser argued to the Supreme Court that Illi-

nois had exercised a power “forbidden to the States by the

Constitution of the United States.” Jd. at 260, 6 S.Ct. 580.

He relied on both the Second and Fourteenth Amend-

ments. See id. at 257, 260-61, 6 S.Ct. 580.

The Supreme Court rejected Presser’s argument. Jus-

tice Woods explained, “[A] conclusive answer to the con-

tention that [the Second Amendment] prohibits the legis-

lation in question lies in the fact that the amendment is a

limitation only upon the power of Congress and the Na-

tional government, and not upon that of the States.” Jd. at

265, 6 S.Ct. 580. The Court quoted Chief Justice Waite’s

opinion in United States v. Cruikshank, 92 U.S. 542, 23

L.Ed. 588 (1875). “[T]he right of the people to keep and

bear arms ‘is not a right granted by the Constitution. Nei-

ther is it in any manner dependent upon that instrument

for its existence. The Second Amendment declares that is

[sic] shall not be infringed, but this, as has been seen,

means no more than that it shall not be infringed by

Congress.” Presser, 116 U.S. at 265, 6 S.Ct. 580 (quot-

ing Cruikshank, 92 U.S. at 553).22 The Court affirmed

Presser’s conviction. Id. at 269.

“3 The Presser court extended Cruikshank in an important way. In

Cruikshank, the Supreme Court considered whether section six of the

Enforcement Act, 16 Stat. 140, 141 (1870), prohibited individuals from

conspiring to prevent the exercise of the “right to keep and bear arms

for a lawful purpose.” 92 U.S. at 545-49, 553. Section six applied, by

its terms, to persons conspiring “to injure, oppress, threaten or intimi-

date any citizen with intent to prevent or hinder his exercise and en-

joyment of any right or privilege granted or secured to him by the con-

stitution or laws of the United States.” 16 Stat. at 141; see Cruik-

shank, 92 U.S. at 548. The Court found that the right to bear arms

was “not a right granted by the Constitution” or “in any manner de-

pendent upon that instrument for its existence,” id. at 553, and, with

regard to the Second Amendment explained, “This is one of the

amendments that has no other effect than to restrict the powers of the

national government, leaving the people to look for their protection

against any violation by their fellow-citizens of the rights it recognizes

.,” id. at 553. The Cruikshank court thus held that section six of the

17a

Presser 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. The courts are uniform in this interpretation.

See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights

Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d

at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at

730-31 (9th Cir.). Just as Presser had no federal constitu-

tional right “to keep and bear arms” with which to chal-

lenge Illinois’s license requirement, Bach has none to as-

sert against New York’s regulatory scheme. Under

Presser, the right to keep and bear arms is not a limitation

on the power of States.

Bach does not distinguish Presser. Rather, he contends

that Presser is “outdated” and “dofes] not reflect the

Court’s modern view.” He relies on two footnotes for sup-

port — the Fifth Circuit's comment in United States v.

Emerson that Presser “came well before the Supreme.

Court began the process of incorporating certain provi-

sions of the first eight amendments into the Due Process

Clause of the Fourteenth Amendment,” 270 F.3d at 221 n.

13, and the Ninth Circuit’s similar note in Silveira uv.

Lockyer that “Presser rest[s] on a principle that is now

thoroughly discredited,” 312 F.3d 1052, 1066 n. 17 (9th

Cir.2002). Bach contends that Presser should not and

cannot bind our determination of whether the Second

Amendment applies to the States. We disagree.

We must follow Presser. Where, as here, a Supreme

Court precedent “has direct application in a case, yet ap-

pears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case

which directly controls, leaving to th{[e Supreme] Court the

Enforcement Act could not criminalize conspiracies interfering with

any “right to bear arms.” /d. at 553. In so doing, the Cruikshank court

held that it was improper to apply any limitations of the Second

Amendment, whatever those might be, against individuals. Id.

Presser, using the language of Cruikshank, went further: it refused to

apply any limitations of the Second Amendment against the States.

18a

prerogative of overruling its own decisions.” Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484,

109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also id. at 486,

109 S.Ct. 1917 (Stevens, J., dissenting). The Court has

cautioned, in the context of constitutional interpretation,

that “courts should [not] conclude [that] more recent [Su-

preme Court] cases have, by implication, overruled an ear-

lier precedent.” Agostini v. Felton, 521 U.S. 203, 237, 117

S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also id. at 258, 117

S.Ct. 1997 (Ginsburg, J., dissenting). Even if a Supreme

Court precedent was “‘unsound when decided’” and even if

it over time becomes so “‘inconsistent with later deci-

sions’” as to stand upon “‘increasingly wobbly, moth-eaten

foundations,” it remains the Supreme Court’s “prerogative

alone to overrule one of its precedents.” State Oil Co. v.

Khan, 522 U.S. 3, 9, 20, 118 S.Ct. 275, 1389 L.Ed.2d 199

(1997) (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363

(7th Cir.1996) (Posner, J.)). Thus, “regardless of whether

appellant[] agree[s}] with the Presser analysis, it is the law

of the land and we are bound by it. The[] assertion that

Presser is illogical is a policy matter for the Supreme Court

to address.” Quilici, 695 F.2d at 270. We cannot overrule

the Supreme Court.”

24 Bach cites this Court’s incorporation of the Third Amendment in

Engbiom v. Carey, 677 F.2d 957 (2d Cir.1982), as support for the propo-

sition that this Court may incorporate rights against the States without

waiting for a “Supreme Court decision explicitly” doing so. Engblom is

not relevant to the question before us, which is not whether this Court

can incorporate rights in the absence of a Supreme Court precedent

doing so — our precedents in Engblom and United States v. Wilkins, 348

F.2d 844 (2d Cir.1965), suggest that we can — but, rather, whether this

Court can overrule the Supreme Court. The Supreme Court answered

that question in the negative in Shearson/American Express and

Agostint.

Notably, in Wilkins, this Court incorporated the Double Jeopardy

. Clause over a dissent that complained that “the incorporation of guar-

antees of the Bill of Rights into the Due Process Clause of the Four-

teenth Amendment at the expense of departing from several long-

standing Supreme Court decisions is a step which should only be taken

by that Court.” 348 F.2d at 868 (Metzner, J., dissenting). Wilkins,

19a

Accordingly, we hold that the “right to keep and bear

arms” does not apply against the States and affirm the

district court’s dismissal of Bach’s Second Amendment

claim. ?

Vv

Bach also challenges New York’s licensing regime under

the Privileges and Immunities Clause of Article IV, section

two of the Constitution. He contends that “New York’s

prohibition on allowing nonresidents such as Bach to ob-

tain a firearms-4icense violates the Privileges and Immuni-

ties Clause.”

Bach suggests that New York’s licensing scheme uncon-

stitutionally discriminates against both his protected

rights under the Privileges and Immunities Clause and

the “right to travel” secured therein. But the “right to

travel,” at least in this context, is simply a shorthand for

the protections of the Privileges and Immunities Clause of

Article IV, as travel — movement from one State to another

— is at the core of every Privileges and Immunities Clause

challenge. As the Supreme Court has explained, the “right

to travel,” in the constitutional context, “embraces at least

three different components.” Saenz v. Roe, 526 U.S. 489,

500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). Two of those

components, “‘the right of free ingress and regress to and

from’ neighboring states,” id. at 500-01, 119 S.Ct. 1518

(quoting United States v. Guest, 383 U.S. 745, 758, 86

S.Ct. 1170, 16 L.Ed.2d 239 (1966)), and “the right of the

newly arrived citizen to the same privileges and immuni-

ties enjoyed by other citizens of the same State,” id. at

502-04, 119 S.Ct. 1518, are inapplicable here. The third

however, came two decades before the Supreme Court’s “firm instruc-

tion” in Shearson/American Express. Agostini, 521 U.S. at 258, 117

S.Ct. 1997 (Ginsburg, J., dissenting). As Justice Ginsburg explained,

before Shearson/American Express, “lower courts sometimes inquired

whether an earlier ruling of th{e Supreme] Court had been eroded to

the point that it was no longer good law.” Jd. “Shearson/American

Express now controls, however, so... [this Court has] no choice” but to

follow Presser. Id.

20a

and only relevant component is merely a restatement of

rights arising under Article IV — “the right to be treated as

a welcome visitor rather than an unfriendly alien when

temporarily present in [a] second State.” Jd. at 501, 119

S.Ct. 1518. Bach’s appeal depends on only this last guar-

antee that, “by virtue of a person’s state citizenship, a citi-

zen of one State who travels in other States, intending to

return home at the end of his journey, is entitled to enjoy

the ‘Privileges and Immunities of Citizens in the several

States’ that he visits.” Jd. at 501, 119 S.Ct. 1518. His ap-

peal thus condenses to the challenge that New York’s

handgun licensing scheme unconstitutionally discrimi-

nates against nonresidents with regard to a protected

privilege under the Clause.

Because we hold that New York’s interest in monitoring

gun licensees is substantial and that New York’s restric-

tion of licenses to residents and persons working primarily

within the State is sufficiently related to this interest, we

reject Bach’s Article IV Privileges and Immunities Clause

challenge.

A

The Privileges and Immunities Clause provides that

“{t]he Citizens of each State shall be entitled to all Privi-

leges and Immunities of Citizens in the several States.”

U.S. CONST. art. IV, § 2. This clause, like the Commerce

Clause of Article I, section 8, derives from the fourth of the

Articles of Confederation,”® see Austin v. New Hampshire,

*° That article provided, “The better to secure and perpetuate mu-

tual friendship and intercourse among the people of the different

States in this Unio1., the free inhabitants of each of these States, pau-

pers, vagabonds and fugitives from justice excepted, shall be entitled to

all privileges and immunities of free citizens in the several States; and

the people of each State shall have free ingress and regress to and from

any other State, and shall enjoy therein all the privileges of trade and

commerce, subject to the same duties, impositions and restrictions as

to the inhabitants thereof respectively.” Austin v. New Hampshire, 420

U.S. 656, 660, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975). “[This] provision

was carried over into the comity article [Article IV] of the Constitution

in briefer form but with no change of substance or intent, unless it was

2la

420 U.S. 656, 660-61, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975);

Hicklin v. Orbeck, 437 U.S. 518, 531-32, 98 S.Ct. 2482, 57

L.Ed.2d 397 (1978); Connecticut ex rel. Blumenthal v.

Crotty, 346 F.3d 84, 94 (2d Cir.2003), and had the primary

purpose of “fus[ing] into one Nation a collection of inde-

pendent, sovereign States,” Toomer v. Witsell, 334 U.S.

385, 395, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948); see also Su-

preme Court of Virginia v. Friedman, 487 U.S. 59, 64, 108

S.Ct. 2260, 101 L.Ed.2d 56 (1988). “It was designed to in-

sure to a citizen of State A who ventures into State B the

same privileges which the citizens of State B enjoy.”

Toomer, 334 U.S. at 395, 68 S.Ct. 1156. It operates to

“place the citizens of each State upon the same footing

with citizens of other States, so far as the advantages re-

sulting from citizenship in those States are concerned.”

Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357

(1869), quoted in Friedman, 487 U.S. at 64, 108 S.Ct. 2260.

‘ Indeed, “(t]he Privileges and Immunities Clause, by mak-

ing noncitizenship or nonresidence an improper basis for

locating a special burden, implicates not only the individ-

ual’s right to nondiscriminatory treatment but also, per-

haps more so, the structural balance essential to the con-

cept of federalism.” Austin, 420 U.S. at 662, 95 S.Ct.

1191 (footnote omitted).

In order to prevail on a Privileges and Immunities chal-

lengé, « plaintiff imust demonstrate that the “State has, in

fact, discriminated against out-of-staters with regard to

the privileges and immunities it accords its own citizens.”

Crotty, 346 F.3d at 94. The challenged “privilege” must

come within the scope of the Clause. “The Clause‘... es- -

tablishes a norm of comity without specifying the particu-

lar subjects as to which citizens of one State coming within

to strengthen the force of the clause in fashioning a single nation.” Jd.

at 661 & n. 6, 95 S.Ct. 1191.

26 Although the Clause uses the term citizens, residency and citizen-

ship are “essentially interchangeable” for analytical purposes. Fried-

man, 487 U.S. 59, 64, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1998); see also

Austin, 420 U.S. at 662 n. 8, 95 S.Ct. 1191.

22a

the jurisdiction of another are guaranteed equality of

treatment.’” Friedman, 487 U.S. at 64, 108 S.Ct. 2260

(quoting Austin, 420 U.S. at 660, 95 S.Ct. 1191). Only

those activities “‘sufficiently basic to the livelihood of the

Nation’” are protected. Friedman, 487 U.S. at 64, 108

S.Ct. 2260 (quoting Baldwin v. Montana Fish & Game

Comm'n, 436 U.S. 371, 388, 98 S.Ct. 1852, 56 L.Ed.2d 354

(1978)). Other “distinctions between residents and non-

residents merely reflect the fact that this is a Nation com-

posed of individual States.” Baldwin, 436 U.S. at 383, $8

S.Ct. 1852.

Where a protected privilege or immunity is implicated,

the State may defeat the challenge by showing sufficient

justification for the discrimination, i.e., “‘something to in-

dicate that non-citizens constitute a peculiar source of the

evil at which the statute is aimed.” Hicklin, 437 U.S. at

526, 98 S.Ct. 2482 (quoting Toomer, 334 U.S. at 398, 68

S.Ct. 1156); see also United Bldg. & Constr. Trades Coun-

cil of Camden County & Vicinity v. Mayor & Council of

Camden, 465 U.S. 208, 222, 104 S.Ct. 1020, 79 L.Ed.2d

249 (1984). A state may defend its position by demonstrat-

ing: “(a) a substantial reason for the discrimination, and

(b) a reasonable relationship between the degree of dis-

crimination exacted and the danger sought to be averted

by enactment of the discriminatory statute.””’ Crotty, 346

27 The Privileges and Immunities Clause and the so-called Dormant

Commerce Clause have much in common: they share a common origin,

are “mutually reinforcing,” see Hicklin, 437 U.S. at 531, 98 S.Ct. 2482,

are often used to challenge the same statute, see, e.g., Ward v. Mary-

land, 79 U-S. (12 Wall.) 418, 432-33, 20 L.Ed. 449 (1870) (Bradley, J.,

concurring); Toomer, 334 U.S. at 407-09, 68 S.Ct. 1156 (Frankfurter, J.,

concurring); Crotty, 346 F.3d at 100 n. 16; Swedenburg v. Kelly, 358

F.3d 223 (2d Cir.2004), and, in some instances, the jurisprudence of

one may inform that of the other, see, e.g., Hicklin, 437 U.S. at 531-34,

98 S.Ct. 2482; Crotty, 346 F.3d at 98. Nonetheless, different tests gov-

ern each. A statute will survive a Privileges and Immunities analysis

if a State can demonstrate a “substantial” interest that is, as variously

described, “reasonably,” Toomer, 334 U.S. at 399; Crotty, 346 F.3d at

94, “substantialfly],” Hicklin, 437 U.S. at 527, 98 S.Ct. 2482; United

Bidg., 465 U.S. at 222, 104 S.Ct. 1020; Supreme Court of New Hamp-

23a

F.3d at 94; see also Lunding v. New York Tax Appeals Tri-

bunal, 522 U.S. 287, 298, 118 S.Ct. 766, 139 L.Ed.2d 717

(1997). “The availability of less restrictive means is con-

sidered when evaluating the measure and degree of the

relationship between the discrimination and state inter-

est.” Crotty, 346 F.3d at 94; see also Friedman, 487 U.S. at

67, 108 S.Ct. 2260; Supreme Court of New Hampshire uv.

Piper, 470 U.S. 274, 284, 105 S.Ct. 1272, 84 L.Ed.2d 205

(1985). This evaluation must “be conducted with due re-

gard for the principle that States should have considerable

leeway in analyzing local evils and prescribing appropriate

cures.” Toomer, 334 U.S. at 396, 68 S.Ct. 1156, quoted in

Lunding, 522 U.S. at 298, 118 S.Ct. 766.

Insofar as a plaintiff challenges a State’s discrimination

against him with regard to privileges and immunities — an

“as-applied” challenge — he need only demonstrate that his

own “nonresidency presents [no] special threat to any of

the State’s interests that is not shared” by residents.

Piper, 470 U.S. at 289, 105 S.Ct. 1272 (White, J., concur-

ring); see also Crotty, 346 F.3d at 100. A facial challenge is

more burdensome. See Velazquez v. Legal Servs. Corp.,

164 F.3d 757, 763 (2d Cir.1999). “A facial challenge to a

legislative Act is, of course, the most difficult challenge to

mount successfully, since the challenger must establish

that no set of circumstances exist under which the Act

would be valid.” United States v. Salerno, 481 U.S. 739,

745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, to

shire v. Piper, 470 U.S. 274, 284, 105 S.Ct. 1272, 84 L.Ed.2d 205

(1985), or “closely,” Friedman, 487 U.S. at 65, 108 S.Ct. 2260, related

to the discriminatory means employed. By contrast, under the Dor-

mant Commerce Clause, “[d]iscrimination against interstate commerce

in favor of local business or investment is per se invalid, save in a nar-

row class of cases in which the municipality can demonstrate, under

rigorous scrutiny, that it has no other means to advance a legitimate

local interest.” C & A Carbone v. Town of Clarkstown, 511 U.S. 383,

392, 114 S.Ct. 1677, 128 L.Ed 2d 399 (1994); see also Swedenburg, 358

F.3d at 238 (“When a state statute, whether on its face or in effect, dis-

criminates against interstate commerce, it is virtually per se invalid

ieee

24a

succeed on a i.\cial challenge, the plaintiff must show an

absence of “any circumstances under which th[e] statute

avoids a constitutional reckoning with the Privileges

and Immunities Clause.” Crotty, 346 F.3d at 100 (citing

Velazquez, 164 F.3d at 763).

B

Bach argues that New York’s licensing regime discrimi-

nates against nonresidents with regard to a protected

right under Article [V’s Privileges and Immunities Clause

without sufficient justification. Defendants do not dispute

that New York’s laws discriminate against nonresidents,

who, unlike residents, may only apply for a license if they

work principally within the State. Instead, they respond,

first, that possession of a firearm is not within the ambit of

the Privileges and Immunities Clause and, second, that,

even if the Clause did apply, New York’s pistol permit

scheme would remain valid because it “is closely related to

a substantial state interest in restricting firearms posses-

sion to persons of acceptable temperament and character.”

1

Bach can prevail only if New York’s grant of an Article

400 license should be considered a “privilege” under Arti-

cle IV. Neither the Supreme Court, this Court, nor any

other Court of Appeals has considered whether the Privi-

leges and Immunities Clause protects what Bach calls “the

right to self-defense through the use of a firearm.” Indeed,

“(mjany, if not most, [Supreme Court] cases expounding

the Privileges and Immunities Clause have dealt with

th[e] basic and essential activity” of pursuing “a common

calling.” United Bldg., 465 U.S. at 219, 104 S.Ct. 1020; see

also Crotty, 346 F.3d at 95 (collecting cases).2* Nonethe-

less, the Supreme Court “has never held that the Privi-

“° The Supreme Court “repeatedly has found that ‘one of the privi-

leges which the Clause guarantees to citizens of State A is that of doing

bustness in State B on terms of substantial equality with citizens of

that State.” Piper, 470 U.S. at 280, 105 S.Ct. 1272 (quoting Toomer,

334 U.S. at 396, 68 S.Ct. 1156).

25a

leges and Immunities Clause protects only economic inter-

ests,” Piper, 470 U.S. at 281 & n. 11, 105 S.Ct. 1272 (stat-

ing that the noncommercial role of a lawyer falls within

the Clause); see also Doe v. Bolton, 410 U.S. 179, 200, 93

S.Ct. 739, 35 L.Ed.2d 201 (1973) (striking residency re-

quirement in abortion statute), and Bach contends that

the right to carry a handgun is one of the non-economic

interests protected by the Clause.

As support, Bach is in the awkward position of relying

on dicta from the Supreme Court’s opinion in Dred Scott v.

Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).

Chief Justice Taney in Dred Scott suggested that an at-

tribute of citizenship, in addition to the right to migrate

from one state to another, was the right to possess arms.

The Chief Justice wrote:

[I}t cannot be believed that the large slaveholding

States regarded [blacks] as included in the word

** Bach also argues that Patsone v. Pennsylvania, 232 U.S. 138, 34

S.Ct. 281, 58 L.Ed. 539 (1914), supports his position that the Privileges

and Immunities Clause encompasses the right to carry a handgun. It

does not. In Patsone, the Supreme Court considered an equal protec-

tion challenge to a Pennsylvania statute that discriminated against

aliens by limiting their rights to own shotguns and rifles. See id. at

141, 143, 34 S.Ct. 281. The Court had no opportunity to consider the

Privilege and Immunities Clause.

Moreover, to the extent that dicta from Patsone might have indi-

cated, as Bach suggests, that the right to own a pistol is protected as a

fundamental right under the Equal Protection Clause, this Circuit has

rejected that position. See United States v. Toner, 728 F.2d 115, 128

(2d Cir.1984) ( “[The] right to possess a gun is clearly not a fundamen-

tal right.”); see also Lewis v. United States, 445 U.S. 55, 65 & n. 8, 100

S.Ct. 915, 63 L.Ed.2d 198 (1980) (reviewing firearms restrictions for a

rational basis and noting, “[Llegislative restrictions on the use of fire-

arms ... do [not] trench upon any constitutionally protected liber-

ties.”); United States v. Darrington, 351 F.3d 632, 635 (5th Cir.2003);

Olympic Arms v. Buckles, 301 F.3d 384, 388-89 (6th Cir.2002); United

States v. Hancock, 231 F.3d 557, 565-66 (9th Cir.2000); Gillespie v. City

of Indianapolis, 185 F.3d 693, 709 (7th Cir.1999); United States v.

Synnes, 438 F.2d 764, 771 & n. 9 (8th Cir.1971). Thus, Bach has noth-

ing here to gain by equating protected rights under the Equal Protec-

tion Clause with the “privileges” of Article IV.

26a

citizens, or would have consented to a Constitution

which might compel them to receive thern in that

character from another State. For if they were so

received, and entitled to the privileges and immuni-

ties of citizens, it would exempt them from the op-

eration of the special laws and from the police regu-

lations which they considered to be necessary for

their own safety. It would give to persons of the ne-

gro race, who were recognized as citizens in any one

State, the right to enter every other State whenever

they pleased, singly or in companies, without pass or

passport, and without obstruction, ... and to keep

and carry arms wherever they went.

Id. at 417. “The logic of Taney’s argument at this point

seems to be that, because it was inconceivable that the

Framers could have genuinely imagined blacks having the

right to possess arms, it follows that they could not have

envisioned them as being citizens, since citizenship en-

tailed that right.” Sanford Levinson, The Embarrassing

Second Amendment, 99 YALE L.J. 637, 651. Bach con-

tends that “[t]his is powerful evidence of what rights the

Supreme Court understood the Clause protects, although

its protections wrongly were denied to an entire class of

people.” Defendants, by contrast, would have us view the

Chief Justice’s comments as inconsequential dicta, in-

serted “to bolster [the] holding” by “raising the specter of

slave revolt.”

This is not the occasion to weigh the import, if any, of

Chief Justice Taney’s ruminations. Because we agree with

defendants and the district court that New York’s licens-

ing scheme is sufficiently justified, see Bach, 289

F.Supp.2d at 226-28, we will assume, without deciding,

that entitlement to a New York carry license is a privilege

under Article IV.

2

There is no question that New York discriminates

against nonresidents in providing handgun licenses under

Article 400. Defendants do not contest this fact. Instead,

27a

i

they argue that the discrimination is sufficiently justified

by New York’s public safety interest in monitoring hand-

gun licensees.*” We do not doubt, and Bach does not dis-

pute, that “[t}he State has a substantial and legitimate

interest ... in insuring the safety of the general public

from individuals who, by their conduct, have shown them-

selves to be lacking the essential temperament or charac-

ter which should be present in one entrusted with a dan-

gerous instrument.” Jn re Pelose, 53 A.D.2d 645, 645, 384

N.Y.S.2d 499 (2d Dep’t 1976).*"

New York’s monitoring interest is, in essence, an inter-

est in continually obtaining relevant behavioral informa-

tion. The State’s licensing scheme vests broad revocation

discretion in a local licensing officer, permitting that offi-

cer to revoke a license on the basis of a wide variety of be-

havioral data, including information reported from local

incidents. See, e.g., Finley, 272 A.D.2d 831, 708 N.Y.S.2d

190; Harris, 57 A.D.2d 778, 394 N.Y.S.2d 210. The opera-

tive information available to licensing officers is not re-

stricted to the legal formalities of an arrest warrant, an

accusatory instrument, or a judgment of conviction. Li-

censing officers have the discretion to revoke licenses upon

*° Defendants also argue that New York’s residency requirement en-

ables “local licensing officers to make informed decisions about the

suitability of applicants.” The district court credited this argument.

See Bach, 289 F.Supp.2d. at 227. However, because we hold that New

York's monitoring rationale is a sufficient justification, we do not con-

sider New York’s interest in the initial licensing determination.

*! This interest extends to the State’s ability to monitor licensees’

“good character, competency and integrity,” see N.Y. Penal Law

§ 400.00(3), including their mental fitness, see Harris, 57 A.D.2d at

778, 394 N.Y.S.2d 210, composure, see Gerard, 307 A.D.2d at 633, 762

N.Y.S.2d 533; Finley, 272 A.D.2d at 831, 708 N.Y.S.2d 190, maturity of

judgment, see Lang, 205 A.D.2d at 783, 614 N.Y.S.2d 41; In re Papaio-

annou, 14 A.D.3d 459, 459, 788 N.Y.S.2d 378 (1st Dep't 2005), and safe

or unsafe habits, see Jn re Ehrlich, 99 A.D.2d at 545, 471 N.Y.S.2d 628;

Zalmanou, 240 A.D.2d at 173, 657 N.Y.S.2d 691. In the case of a carry

licensee, it also includes the State’s ability to monitor continuing

“proper cause.” See N.Y. Penal Law § 400.00(2)(f); 1991 N.Y. Op. Atty.

Gen. (Inf.) 72, 1991 N.Y. A.G. LEXIS 84, at *3.

28a

displays of “poor judgment,” see, e.g., Lang, 205 A.D.2d at

783, 614 N.Y.S.2d 41, dangerous paranoia, see, e.g., Harris,

57 A.D.2d at 778, 394 N.Y.S.2d 210, or violations of permit

restrictions, see, e.g., Brookman v. Dahaher, 234 A.D.2d

615, 615-16, 650 N.Y.S.2d 879 (3d Dep’t 1996).

But the degree of discrimination exacted must be sub-

stantially related to the threatened danger. See Crotty,

346 F.3d at 94. This is the more difficult inquiry: with re-

gard to New York’s monitoring interest, is there any “par-

ticularized evil presented uniquely by nonresident{s] ...

that warrants the degree of outright discrimination im-

posed”? Crotty, 346 F.3d at 98. Defendants argue:

The ongoing flow of information to a licensing officer

as a result of the licensee’s tie to a particular resi-

dence or community is an important element of the

State’s regulatory scheme. It substantially in-

creases the likelihood that a licensing officer will be

alerted to facts that cast doubt on a licensee’s fitness

to possess a firearm.

Appellee’s Br. at 19-20. Bach challenges the substantiality

of this relationship. He contends: (1) nonresidents within

the State are no more difficult to monitor than residents,

and (2) New York has not shown that it could not obtain

the same quality of information from other States. Thus,

Bach concludes, defendants have not shown any “palpable

and unique risks” posed by out-of-state residents. We dis-

agree.

First, although it may be true that New York can moni-

tor nonresidents as easily as residents while either are in

the State, New York has an interest in the entirety of a

licensee’s relevant behavior. Information regarding a li-

censee’s adherence to license conditions is information

that may only exist when the gun owner is in-state, but

information regarding the licensee’s character and fitness

for a cohtinued license is not so limited. New York has

just as much of an interest, for example, in discovering

signs of mental instability demonstrated in New Jersey as

in discovering that instability in New York. The State can

29a

only monitor those activities that actually take place in

New York. Thus, New York can best monitor the behavior

of those licensees who spend significant amounts of time in

the State. By limiting applications to residents and in-

state workers, New York captures this pool of persons. It

would be much more difficult for New York to monitor the

behavior of mere visitors like Bach, whose lives are spent

elsewhere.*”

Second, we think it self-evident that, at least in Bach’s

case, other States, like Virginia, cannot adequately play

the part of monitor for the State of New York or provide it

with a stream of behavioral information approximating

what New York would gather. They do not have the incen-

tives to do so. First, other States are not bound to im-

pose a discretionary revocation system like New York’s.*

2 Bach does not allege that he spends as much time in New York as

a local resident or worker and does not argue, accordingly, that New

York would have equally adequate opportunities to monitor him.

33 Indeed, Virginia appears to have a system quite different from

New York’s. Whereas New York vests extraordinary discretion in li-

censing officers to deny or revoke licenses on the basis of “proper cause”

and “good character, competency and integrity” standards, in 1995, Vir-

ginia deleted its more genera! “good character” standard and replaced it

with specific enumerated grounds for disqualification. See Va.Code

§ 18.2-308; 1995 Va. Op. Atéy. Gen. 130, 1995 WL 677533, at *1 (ex-

plaining change in Code fress. « “good character” standard to enumer-

ated disqualification rules). Visginia’s Attorney General concluded that

a gun-permitting decision wm the Commonwealth may be based only on

the statutorily required information and that courts are “not author-

ize[d] ... to require additional information for determining the advis-

ability of granting an applicant a permit for reasons not enumerated in

the statute.” Jd. at *2.

We need not determine whether a plaintiff from a State employing a

system substantially similar to New York’s would be able to demon-

strate a non-discriminatory and adequate substitute means for New

York to satisfy its interest in monitoring nonresidents. We would note,

however, that the Supreme Court has stated, albeit in the context of

taxes challenged under the Clause, that “the constitutionality of one

State’s statutes affecting nonresidents [cannot] depend upon the pre-

sent configuration of the statutes of another State.” Lunding, 522 U.S.

at 314, 118 S.Ct. 766 (quoting Austin, 420 U.S. at 668, 95 S.Ct. 1191);

30a

Therefore, they need not engage in monitoring of licensees

similar to New York’s monitoring. Second, because a New

York license operates only in New York, other States, like

Virginia, have very little to gain from a revocation of a

New York license — a revocation would affect the safety of

New Yorkers, not Virginians. Obviously, New Yorkers

have a much greater interest in reporting misbehavior

to New York local licensing officers than do out-of-state

persons and their government officers. Monitoring is

incentive-driven; without these incentives, there is little

reason to expect effective monitoring, if any.™

Moreover, Bach does not point to any adequate alterna-

tive method for New York to collect this information. Bach

argues that New York can and does rely on out-of-state

reporting and cites Penal Law § 400.00(11), which pro-

vides for revocation or suspension of a license upon the

conviction of a felony or serious offense “anywhere.” But

New York’s system permits license revocations for a range

of misbehavior of which serious offenses and felonies form

only a small part, and Bach does not point to any reason to

expect Virginia or any other State to report such behavior

to New York. Bach also suggests that New York could re-

quire nonresidents to submit to more frequent renewals or

periodic interviews with local officials. However, New

York’s proffered interest is in monitoring the relevant day-

to-day behavior of license-holders; it is unclear how an

cf. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 81-82, 40 S.Ct. 228,

64 L.Ed. 460 (1920).

** Bach points out that New York’s monitoring process involves in-

formation-sharing between counties and suggests that there is no dif-

ference between county-to-county sharing within New York and shar-

ing between out-of-state and in-state localities. But New York counties

have the two important monitoring and reporting incentives, discussed

above, that out-of-state localities lack: first, counties operate under

New York’s revocation regime and, second, because a New York carry

license may be valid throughout the State, counties internalize the

effects of an unfit or dangerous licensee and have much to gain from a

timely revocation.

3la

accelerated renewal schedule or a round of interviews with

local officials would supply this information.

Bach also suggests that reference letters or certifications

from a nonresident’s local authorities could fill New York’s

informational gap. Perhaps in other contexts references or

similar informational requests might provide an adequate

substitute source of information. For instance, when a

State has an interest in monitoring the fitness of a li-

censed professional, references from persons involved in

professional relationships with the licensee might be an

adequate source of information. Or, where a State has an

interest in monitoring the fitness of a licensed user of

some universally-insured activity — driving an automobiie,

for instance — submission of updated insurance reports

might prove adequate. In both examples, there may be

strong arguments that another party has an equally

strong incentive to monitor the licensee’s relevant behav-

ior — the professional’s clients will often have a personal

stake in the professional’s work; the insurer will have a

financial stake in the insured’s risk profile. Here, how-

ever, Bach has not pointed to any monitor with a similar

interest in assessing a nonresident’s fitness to carry a

handgun. Other States are not bound by New York’s

monitoring system. Thus, Bach has not shown how New

York could “protect its interests through less restrictive

means.” Piper, 470 U.S. at 287, 105 S.Ct. 1272.

New York’s monitoring rationale is distinct from ration-

ales 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. The exception for nonresidents working in-state

%® See, e.g., Crotty, 346 F.3d at 99; see also Toomer, 334 U.S. at 397-

99, 68 S.Ct. 1156. Cf. Philadelphia v. New Jersey, 437 U.S. 617, 98

S.Ct. 2531, 57 L.Ed.2d 475 (1978); C & A Carbone, Inc. v. Town of

Clarkstown, New York, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399.

32a

is consistent with this criterion. The exception also fur-

ther distinguishes New York’s license requirements from

those invalidated in Piper and Friedman. There, non-

resident lawyers were denied admittance to the bar even

though their primary places of business were within the

licensing State. See Piper, 470 U.S. at 275-76, 105 S.Ct.

1272; id. at 288, 105 S.Ct. 1272 (White, J., concurring);

Friedman, 487 U.S. at 61, 68-69, 108 S.Ct. 2260. Here, by

contrast, nonresidents with their primary place of busi-

ness in New York are eligible for an Article 400 license.

See N.Y. Penal Law § 400.00(3)(a). New York’s exception

is relevant because the location of a licensee’s principal

employment correlates with the State’s monitoring inter-

est in a manner similar to the place of the licensee’s resi-

dence — both present opportunities for the State to monitor

the licensee.* New York’s nonresident distinction, with

the in-state worker exception, is thus tailored to the

State’s monitoring interest.

eee

Defendants have demonstrated that “‘non-citizens con-

stitute a peculiar source of the evil at which the statute is

aimed.” Hicklin, 437 U.S. at 526, 98 S.Ct. 2482 (quoting

Toomer, 334 U.S. at 398, 68 S.Ct. 1156). They have “‘no

[more] burden to prove that [the State’s] laws are not vio-

lative of the ... Clause.’” Jd. (quoting Baldwin, 436 U.S.

at 402, 98 S.Ct. 1852 (Brennan, J., dissenting)). Bach’s

failure to prevail on his as-applied. challenge renders his

* It is quite possible that many other State interests, including

those considered in Piper and Friedman, might not substantially corre-

late with domicile. The New Jersey Supreme Court, for instance, con-

cluded that there is only a weak correlation, at best, between that

State's interest in its lawyers’ qualifications and a lawyer's place of

dumicile. See In re Sackman, 90 N.J. 521, 448 A.2d 1014, 1021 (1982).

The New Jersey Supreme Court explained that “[t]he premise .. . that

the mere fact of living in New Jersey makes it more likely, and more to

the point, sufficiently more likely, that that lawyer will be more compe-

tent, accessible and accountable than the one who is living in another

state[,) ... [if] true, ...is only marginally true.” /d. Here, by contrast,

the fact that a litensee lives in New York makes it sufficiently mere

likely that the State will be able to monitor him.

33a

facial challenge likewise invalid. Accordingly, we affirm

the district court’s rejection of Bach’s Privileges and Im-

munities Clause claim. Cf. In re Ware, 474 A.2d 131

(Del.Sup.Ct.1984); Perez, 67 Misc.2d at 911-13, 325

N.Y.S.2d 183.

VI

Theories regarding constitutional protections for the

“right to keep and bear arms” have moved from the pages

of law reviews to those of the Federal Reporters. Perhaps

soon they will make their way into the United States Re-

ports. Bach presents two theories of protected rights to

arms — protection under the Second Amendment and the

Privileges and Immunities Clause of Article IV — but this

is not the case in which to decide the propriety of either.

The Second Amendment cannot apply to the States in light

of Presser, and the Privileges and Immunities Clause can-

not preclude New York’s residency requirement in light of

the State’s substantial interest in monitoring handgun li-

censees.

For the foregoing reasons, the district court’s judgment

of September 23, 2003 is hereby AFFIRMED.

34a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

No. 02-CV-1500

DAVID D. BACH,

Plaintiff,

V.

GEORGE PATAKI, IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF NEW YORK, ET AL.,

Defendanis.

[Filed Sept. 23, 2004]

MEMORANDUM - DECISION AND ORDER

MORDUE, District Judge.

INTRODUCTION

In this action for declaratory and permanent injunctive

relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331,

1343(a)(3),(4), plaintiff moves for a preliminary injunction,

permanent injunction and declaratory judgment pending

final judgment (Dkt. No. 2). He moves separately to con-

solidate the trial on the merits with a hearing on the ap-

plication for a preliminary injunction (Dkt. No. 7). Defen-

dants George E. Pataki, in his official capacity as Governor

of New York, Eliot Spitzer, in his official capacity as At-

torney General of New York, and James W. McMahon, in

his official capacity as Superintendent, New York State

Police (collectively “state defendants”) cross-move to ais-

miss the complaint (Dkt. No 10). For reasons set forth

herein, the Court denies plaintiff's motions and grants the

state defendants’ motion to dismiss the complaint against

them.

35a

Plaintiff, a nonresident of New York, challenges New

York’s statutory scheme pertaining to the issuance of per-

mits to carry or possess concealed firearms in the state.

Under the scheme, most people without significant con-

tacts to New York are not eligible for such permits and

thus are prevented from legally carrying such weapons

while traveling in New York. In his initial pleading, de-

nominated “Plaintiff’s Application for Preliminary and

Permanent Injunction, and Declaratory Relief,”' plaintiff,

a domiciliary of the state of Virginia, summarizes his

claim as follows:

This Application seeks declaratory and injunctive

relief to protect the substantive constitutional rights

of ordinary, law-abiding, nonresident citizens of sis-

ter States to keep and bear otherwise lawful fire-

arms while temporarily residing, visiting and travel-

ing within the State of New York; and to protect

these citizens from unlawful discrimination and

criminal prosecution under State law. Bach seeks a

declaratory judgment that New York’s licensing

provisions (as codified in N.Y. Penal Law §§ 265.00

and 400.00, et seq.), facially, and as applied, violate

the fundamental personal rights, privileges and

immunities of ordinary, iaw-abiding, nonresident

citizens to keep and bear arms, and travel interstate

under the Second and Fourteenth Amendments, and

Article IV of the United States Constitution. In ad-

dition, Bach requests the Court to grant a prelimi-

nary injunctive order pending a determination of the

merits to prevent any further irreparable harm to

Bach and other ordinary nonresident citizens whose

constitutional rights continue to be infringed under

New York law.

’ Plaintiff has not served or filed a document denominated a com-

plaint. With his summons he served and filed “Plaintiff's Application

for Preliminary and Permanent Injunction, and Declaratory Relief”

(Dkt. No. 1). The Court treats this document as the complaint.

36a

In his affidavit in support of the claim, plaintiff avers:

1. I am a citizen of the United States and the State

of Virginia where I maintain my domicile. I possess

a permit to carry a concealed handgun in accordance

with Virginia law and own a 9mm pistol (model P-

85, manufactured by Sturm, Ruger and Company of

Southport, Connecticut) substantially similar to the

type used by the United States Armed Forces, Na-

tional Guard, and law enforcement.

2. I am a Commissioned Officer in the United

States Naval Reserve with approximately twenty-

five years of service, including twelve years of active

duty service. Due to my military service with the

Navy’s Underwater Demolition and SEAL Teams, I

have extensive experience in handling and providing

instruction in different types of small arms. I cur-

rently hold a Department of Defense Top Secret Se-

curity Clearance and have never been convicted of a

felony, firearms related crime, or anv other serious

offense.

3. I am a graduate from an accredited law school

and have been a licensed attorney in good standing

from the Commonwealth of Pennsylvania since

1985. During the past seventeen years, I have been

employed by the Office of the General Counsel, De-

partment of the Navy as an attorney, except for a

period of approximately four-and-a-half years when

I returned to active duty as a Navy SEAL both dur-

ing and after Operation DESERT STORM.

4. I have been married for seventeen years and

have three young children. Although born in New

Jersey, I grew up in the Town of Saugerties, County

of Ulster, New York where my parents continue to

reside.

5. My parents own a small farm and my family and

I periodically visit them for several days at a time.

During the ten-hour drive between Virginia and Up-

state New York, my family and I travel on dimly lit

37a

rural roads, busy streets and highways some of

which are in densely populated areas that have ex-

tremely high crime rates. Should our vehicle break-

down in one of these areas, or should we have an ac-

cident, we would be vulnerable to criminal attack

because we are required to travel unarmed. In addi-

tion, because of my occupation within the Depart-

ment of Defense and Naval Special Warfare, I be-

lieve my family and I are at greater risk of being

targeted by those seek [sic] to carry out symbolic

acts of terror. Therefore, I wish to possess and carry

my personal firearm to protect my family and myself

from acts of criminal violence in accordance with

New York State law during our journey and while

temporarily visiting within the State’s jurisdiction.

6. Law enforcement personnel are relatively few

- and far between and have neither a legal duty to re-

spond to an emergency 911 call nor protect a citizen

or family from a violent criminal acts [sic]. Despite

the exceptional efforts of law enforcement, they can-

not be everywhere at all times as evidenced by the

tens of thousands of ordinary, law-abiding American

citizens who have been, and continue to be brutally

attacked, terrorized and murdered by sadistic crimi-

nals in New York State.

7. Following the attacks on the World Trade Center

in New York, the Pentagon in Virginia, and a com-

mercial airliner in Pennsylvania, the President and

Attorney General of the United States, and Director

of Homeland Security repeatedly warned American

citizens of impending terrorist attacks, including the

possibile employment of weapons of mass destruc-

tion. Additionally, they have notified the public of

the vita! need for every citizen to be watchful and

vigilant as the Nation remains on heightened alert

indefinitely. Because the United States is in a state

of war at home and abroad, and thousands of citi-

zens have been slaughtered by foreign enemies in

38a

New York, Virginia and Pennsylvania, I continue to

maintain a heightened concern for the safety and

welfare of my family, particularly when traveling in-

terstate through unfamiliar territory.

8. As a parent, I bear ultimate responsibility for the

safety, welfare, protection and defense of my chil-

dren. But because New York State law prohibits me

from obtaining the required license to possess and

carry an operable pistei or revolver, I am unable to

effectively protect and defend my family from acts of

criminal violence while temporarily visiting and

traveling within the State. Because attempting to

use a cumbersome long-gun as a personal defense

weapon is an ineffective alternative to a handgun,

particularly in an automobile, I am deprived of the

only rational and effective means I have to repel an

attack from a violent criminal predator.

9. Due to my military training, I am aware that law

enforcement routinely chooses handguns as its pri-

mary weapon of protection. When used properly, a

handgun offers an extremely effective means of per-

sonal protection in close combat situations, such as

stopping violent crirainals.

10. Although the State of New York has deprived

me of the rational and effective means to protect and

.defend my family, the State would be immune from

liability should my family or I be harmed by crimi-

nals, even if the State were to be found grossly neg-

ligent.

11. Because of my concern for my family’s protec-

tion and safety, I mailed written inquiries to Eliot

Spitzer, New York State Attorney General; Sergeant

James Sherman, New York State Police, Pistol Per-

mit Hwreau; and J. Richard Bockelmann, UIster

County Sheriff on November 14, 2001. My purpose

in contacting these government officials was to con-

firm my understanding of New York law whereby an

ordinary nonresident from another State who does

39a

not meet one of the narrowly prescribed exemptions

under N.Y. Penal Law § 265.20, is ineligible to ob-

tain a New York firearms license, and thus submis-

sion of a firearms license application and nonre-

fundable fee would be a futile act.

12. By letter of November 27, 2001, Peter A. Drago,

Director of Public Information and Correspondence,

State of New York, Office of the Attorney General

referred me to the New York State Police in Albany

as the “appropriate authority to contact with your

request.”

13. By letter of December 5, 2001, Sergeant James

Sherman of the New York State Police, Pisto! Bu-

reau, confirmed that “no exemption exists which

would enable you to possess a handgun in New York

State.” Further, “[t]here are no provisions for the

issuance of a carry permit, temporary or otherwise,

to anyone not a permanent resident of New York

State nor does New York State recognize pistol per-

mits issued by other states.” Finally, he warned

that anyone “found to be in possession of a pistol or

revolver that is not registered on a New York State

Pistol Permit, exempt personnel excluded, would be

subject to automatic forfeiture of the firearm in

question and criminal! prosecution.”

14. By letter of December 18, 2001, Ulster County

Undersheriff, George A. Wood confirmed that

“(t]here are two ways in New York State to lawfully

possess a pistol/revolver. First is to be licensed, as

outlined in § 400.00, and the second is to meet one of

the ‘exceptions’ outlined in § 265.20 of the NYS Pe-

nal Law.” Further, he informed me that I clearly

would not meet the exemption for military personne!

under New York Penal Law § 265.20(1)(d) while

temporarily visiting in the State despite my current

military status as a Selected Naval Reservist.

15. Based on the foregoing responses regarding the

State’s application of New York law, I concluded

40a

that neither I nor other ordinary nonresidents, i.e.,

those not meeting any exemption under N.Y. Penal

Law § 265.20, are eligible to obtain a valid New

York State firearms license, aiid that submission of

a firearms license application and nonrefundable fee

would be a futile act since by law it could not be ‘

approved.

Plaintiff’s causes of action assert violation of his right to

keep and bear arms under the Second and Fourteenth

Amendments; violation of his right under the Privileges

and Immunities Clause to keep and bear lawful firearms

while traveling interstate; discriminatory treatment of

nonresidents of New York resulting in a denial of equal

protection; deprivation of substantive due process; and

deprivation of the privileges and immunities of state resi-

dents due to unlawful burdens on the rights of nonresi-

dents to move freely in or through New York.

Under New York’s statutory scheme, a person who

qualifies for an exemption under N.Y. Penal Law § 265.20

is not subject to prosecution under New York’s criminal

statutes proscribing possession of a weapon. Grounds for

exemption under section 265.20 include “[p]Jossession of a

pistol or revolver by a person to whom a license therefor

has been issued as provided under section 400.00” of the

- Penal Law. Section 400.00(3)(a) provides:

Applications shall be made and renewed, in the case

of a license to carry or possess a pistol or revolver, to

the licensing officer in the city or county, as the case

may be, where the applicant resides, is principally

employed or has his principal place of business

as merchant or storekeeper; and, in the case of a

license as gunsmith or dealer in firearms, to the

licensing officer where such place of business is

located.

With respect to the statutory scheme, the state defen-

dants explain:

A variety of persons with significant contacts with

the State, therefore, are statutorily eligible to apply

4la

for a permit, namely New York residents and non-

residents who have their principal place of employ-

ment or principal place of business as a merchant or

storekeeper in New York. The identity of the licens-

ing officer referred to in this section depends on the

locality. See N.Y. Penal Law § 265.00(10). Whether

a permit is, in turn, actually granted is within the

discretion of that licensing officer. Under these pro-

visions, persons, even when granted a permit, are

not provided a blanket license to carry any weapon.

Instead, each license specifies in detail each weapon

covered by that license and whether that license is

issued as a license to carry or possess on the prem-

ises. N.Y. Penal Law § 400.00(7)[-]

(Citations omitted.)

DISCUSSION

Standing

In support of their dismissal motion, the state defen-

dants first argue that plaintiff lacks standing to maintain

the action because, as plaintiff concedes, he has not ap-

plied for a permit under section 400.00 of New York’s Pe-

nal Law. “As a general rule, to establish standing to chal-

lenge an allegedly unconstitutional policy, a plaintiff must

submit to the challenged policy.” Prayze FM v. Federal

Communications Comm'n, 214 F.3d 245, 251 (2d Cir.2000)

(quoting Jackson-Bey v. Hansimaier, 115 F.3d 1091, 1096

(2d Cir.1997) (internal quote omitted)). “In many cases,

requiring litigants to actually apply for a license before

challenging a licensing scheme prevent|s] courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative

policies, and also ... protect[s] the agencies from judicial

interference until an administrative decision has been for-

malized and its effects felt in a concrete way by the chal-

lenging parties.” See Sammon v. New Jersey Bd. of Medi-

cal Examiners, 66 F.3d 639, 643 (3d Cir.1995) (citation and

internal quote omitted).

42a

Plaintiff contends that he has standing despite his fail-

ure to apply for a permit because in his case applying for a

permit would have been futile. Under well-established

law, a plaintiff may be excused from the threshold stand-

ing requirement that he submit to the challenged policy if

he “makes a substantial showing that application for the

benefit ... would have been futile.” Jackson-Bey, 115 F.3d

at 1096. For example, in Sammon, plaintiffs were excused

from applying for licenses on the ground of futility where

there was no indication that they could possibly obtain li-

censes without first meeting the challenged requirement.

66 F.3d at 643. In contrast, in Prayze FM, the Second Cir-

cuit held that the plaintiff had failed to demonstrate futil-

ity where the challenged requirement was subject to

waiver and there was no history from which to judge how

the licensing authority would handle a waiver request.

214 F.3d at 251.

Here, the Court concludes that plaintiff’s failure to ap-

ply for a permit under section 400.00 of the Penal Law

does not deprive him of standing. By his affidavit, plain-

tiff has established facts demonstrating that as a matter of

law he does not qualify for a permit under section 400.00

of New York’s Penal Law by its plain terms and as it has

been construed by New York courts. See, e.g., Mahoney v.

Lewis, 199 A.D.2d 734, 605 N.Y.S.2d 168 (3d Dep’t 1993);

People v. Perez, 67 Misc.2d 911, 325 N.Y.S.2d 183, 186

(1971). Defendants do not dispute plaintiff’s factual alle-

gations in this regard, nor do they seek discovery on the

issue, nor do they argue that there is any factual scenario

in which plaintiff, a Virginia resident who has no employ-

ment or business in New York, could possibly qualify for a

permit under New York law. Moreover, in the case at bar,

as distinguished from Prayze FM, there is nothing to sug-

gest that the challenged residency requirement is subject

to waiver or other discretionary action. See 214 F.3d at

251. Requiring plaintiff to apply for a permit, therefore,

“would serve no purpose.” /d. Accordingly, plaintiff has

made a substantial showing that application for the per-

43a

mit would have been futile. See Jackson-Bey, 115 F.3d at

1096.

Second Amendment: Individual or Collective Right?

Plaintiff contends that New York’s law infringes his

rights under the Second Amendment to the United States

Constitution, which states: “A well regulated Militia, being

necessary to the security of a free State, the right of the

people to keep and bear arms, shall! not be infringed.” Ac-

cording to plaintiff, this amendment “protects individual

Americans in their rights to keep and to bear arms regard-

less of whether they are a member of a select militia or

performing active military service or training.”

Plaintiff’s reading of the Second Amendment guarantee

is not supported by the sparse Supreme Court guidance on

the question. In United States v. Miller, 307 U.S. 174, 178,

59 S.Ct. 816, 83 L.Ed. 1206 (1939), the Supreme Court re-

versed the dismissal of an indictment charging two men

with illegally transporting a shotgun having a barrel less

than eighteen inches in length in violation of the National

Firearms Act. The Miller court rejected the district court’s

conclusion that the Act, which regulated certain firearms

including shotguns having a barrel of less than eighteen

inches in length, violated the Second Amendment. In lan-

guage which has been described as “somewhat cryptic,”

Silveira v. Lockyer, 312 F.3d 1052, 1061 (9th Cir.2002),

petition for cert. filed, 72 USLW 3093 (July 3, 2003), and

“not entirely illuminating,” Gillespie v. City of Indianapo-

lis, 185 F.3d 693, 710 (7th Cir.1999), the Miller court

stated: |

In the absence of any evidence tending to show that

possession or use of a “shotgun having a barrel of

less than eighteen inches in length” at this time has

some reasonable relationship to the preservation or

efficiency of a well regulated militia, we cannot say

that the Second Amendment guarantees the right to

keep and bear such an instrument. Certainly it is

not within judicial notice that this weapon is any

44a

part of the ordinary military equipment or that its

use could contribute to the common defense.

Miller is almost invariably read as demonstrating that

the Supreme Court does not view the Second Amendment

as safeguarding a fundamental individual right. For ex-

ample, the Second Circuit, noting the concession by a

criminal defendant that rational-basis review applies to

his equal protection challenge to a federal firearms stat-

ute, stated:

[Defendant’s] concession ... is clearly correct since

the right to possess a gun is clearly not a fundamen-

tal right, cf. United States v. Miller, 307 U.S. 174, 59

S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of

evidence showing that firearm has “some reasonable

relationship to the preservation or efficiency of a

well regulated militia,” Second Amendment does not

guarantee right to keep and bear such a weapon)/.]

United States v. Toner, 728 F.2d 115, i28 (2d Cir.1984)”;

accord Silveira, 312 F.3d at 1066 (referring to “Miller’s

implicit rejection of the traditional individual rights posi-

tion.”); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.1995) |

(“Since [Miller], the lower federal courts have uniformly

held that the Second Amendment preserves a collective

rather than an individual right.”); but see United States v.

Emerson, 270 F.3d 203, 226 (5th Cir.2001) (Miller does

not support the collective rights approach to the Second

Amendment); also see Warin, 530 F.2d 103, 106 (6th

Cir.1976) and Cases v. United States, 131 F.2d 916, 922

(1st Cir.1942) (the Supreme Court did not intend to formu-

late a general rule in Miller, but merely dealt with the

facts of that case). [

The Supreme Court’s few subsequent references to

Miller offer little further guidance as to the Supreme

? The Second Circuit's treatment of Miller in two unpublished deci-

sions is consistent with that in Toner. See United States v. Scanio, 165

F.3d 15 (Table), 1998 WL 802060, *2 (2d Cir.**98); Lawson v. Kir-

schner, 152 F.3d 919 (Table), 1998 WL 433014, *2 (2d Cir.1998).

45a

Court’s view of the Second Amendment.’ In light of the

wording of Miller, the fact that it has never been dis-

avowed by the Supreme Court, and the manner in which it

has been construed by the Second Circuit and most other

circuit courts, the Court reads Miller as lending support to

the state defendants’ position that the Second Amendment

does not secure an individual right.

3 In Adams v. Williams, Justice Douglas, dissenting from a decision

upholding the seizure of a weapon during a Terry stop, stated his opin-

ion that the police problem arising from illegal weapons “is an acute one

not because of the Fourth Amendment, but because of the ease with

which anyone can acquire a pistol.” 407 U.S. 143, 150, 92 S.Ct. 1921, 32

L.Ed.2d 612 (1972). After stating that “[t]here is no reason why all pis-

tols should not be barred to everyone except the police[,]” he continued:

“The leading case is United States v. Miller, upholding a federal law

maki.ig criminal the shipment in interstate commerce of a sawed-off

shotgun. The law was upheld, there being no evidence that a sawed-off

shotgun had some reasonable relationship to the preservation or effi-

ciency of a well regulated militia. The Second Amendment, it was held,

must be interpreted and applied with the view of maintaining a mili-

tia.” Id. (internal quotes and citation to Miller omitted).

More recently, in Lewis v. United States, the court rejected a challenge

to a federal firearms statute prohibiting a felon from possessing a fire-

arm even if the predicate felony may be subject to collateral attack on

constitutional grounds. In a footnote, the court stated that the legisla-

tive restrictions on the use of firearms do not “trench upon any consti-

tutionally protected liberties[,]” citing Miller. 445 U.S. 55, 65 n. 8, 100

S.Ct. 915. 63 L.Ed.2d 198 (1980).

The most recent reference by the high court to Miller is found in Printz

vu. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997),

in which the Court struck down as violative of the Tenth Amendment

the provision of the Brady Handgun Violence Prevention Act imposing

on state officers the obligation to conduct background checks on pro-

spective handgun purchasers. In his concurring opinion, Justice Tho-

mas observed that the court had not had recent occasion to consider

the nature of the substantive right safeguarded by the Second

Amendment. He stated in a footnote: “In Miller, we determined that

the Second Amendment did not guarantee a citizen's right to possess a

sawed-off shotgun because that weapon had not been shown to be ordi-

nary military equipment that could contribute to the common defense.

The Court did not, however, attempt to define, or otherwise construe,

the substantive right protected by the Second Amendment.” /d. at 938

n. 1, 117 S.Ct. 2365 (internal quotes and citation to Miller omitted).

46a

In addition to the language in Miller, further support for

the conclusion that the Second Amendment does not se-

cure an individual! right is found in Second Circuit author-

ity, see Toner, 728 F.2d at 128 (“the right to possess a gun

is clearly not a fundamental right”), and the heavy weight

of authority in other circuits. See Silveira, 312-F.3d at

1066 (9th Cir.) (“[T]he Second Amendment does not pro-

vide an individual right to own or possess guns or other

firearms{.]”); United States v. Graham, 305 F.3d 1094,

1106 (10th Cir.2002), cert. denied, 537 U.S. 1142, 123 S.Ct.

939, 154 L.Ed.2d 840 (2003) (the right to bear arms is a

collective rather than an individual right); Love, 47 F.3d at

124 (4th Cir.) (“[T]he amendment does not confer an abso-

lute individual right to bear any type of firearm.”); Warin,

530 F.2d at 106 (6th Cir.) (“It is clear that the Second

Amendment guarantees a collective rather than an tindi-

vidual right.”); Dew v. United States, 1998 WL 159060, *6

(S.D.N.Y.1998), aff'd on other grounds, 192 F.3d 366 (2d

Cir.1999) (“It is settled constitutional law that the Second

Amendment is not a source of individual rights.”); Hamil-

ton uv. Accu-tek, 935 F.Supp. 1307, 1318 (E.D.N.Y.1996)

(same); but see Emerson, 270 F.3d at 260 (5th Cir.) (the

Second Amendment “protects the right of individuals, in-

cluding those not then actually a member of any militia or

engaged in active military service or training, to privately

possess and bear their own firearms, such as the pistol

involved here, that are suitable as personal, individual

weapons|[.]”).

In view of the weight of authority, including the present

state of Suoreme Court and Second Circuit jurisprudence,

the Court adopts the view that the Second Amendment is

not a source of individual rights. Accordingly, plaintiff has

not alleged an infringement of any Second Amendment

right.*

* Also in support of their motion to dismiss the complaint, the state

defendants argue that the Second Amendment does not enjoin state

action, another issue which is not free from doubt. In arguing that the

Second Amendment is not incorporated by the Fourteenth Amendment

47a

Right to Travel

Plaintiff also urges that New York’s permit scheme in-

fringes his right to travel. “The constitutional right to

travel from one State to another ... occupies a position

fundamental to the concept of our Federal Union. It is a

right that has been firmly established and repeatedly rec-

ognized.” United States v. Guest, 383 U.S. 745, 757, 86

S.Ct. 1170, 16 L.Ed.2d 239 (1966). One component of the

right to travel is the right of a nonresident of a state “to be

treated as a welcome visitor rather than an unfriendly

alien when temporarily present” in that state. Saenz v.

Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689

(1999). This right is protected by the Privileges and Im-

munities Clause of Article IV of the United States Consti-

tution, which guarantees that a citizen of one state who

travels temporarily in another state is entitled to enjoy the

privileges and immunities of the citizens of the state that

and thus does not constrain actions by the states, the state defendants

rely primarily on United States v. Cruikshank, 92 U.S. 542, 553, 23

L.Ed. 588 (1875) (stating that the Second Amendment “is one of the

amendments that has no other effect than to restrict the powers of the

National Government.”) and Presser v. Illinois, 116 U.S. 252, 6 S.Ct.

580, 29 L.Ed. 615 (1886) (reaffirming Cruikshank). Circuit courts have

recently cited these two cases for the proposition that the Second

Amendment does not apply to the states. See Peoples Rights Org., Inc.

v. City of Columbus, 152 F.3d 522, 538 n. 18 (6th Cir.1998); Love uv.

Pepersack, 47 F.3d 120, 123 (4th Cir.1995). The Fifth Circuit in Emer-

son, however, states with respect to Cruikshank and its progeny: “As

these holdings all came well before the Supreme Court began the proc-

ess of incorporating certain provisions of the first eight amendments

into the Due Process Clause of the Fourteenth Amendment, and as

they ultimately rest on a rationale equally applicable to all those

amendments, none of them establishes any principle governing any of

the issues now before us.” 270 F.3d at 221 n. 13; accord Silveira, 312

F.3d at 1067 n. 17 (stating that Cruikshank and Presser “rest on a

principle that is now thoroughly discredited.”). Neither the Fifth nor

the Ninth Circuit, however, takes a position as to the present-day

status of the question of whether the Second Amendment binds the

states. In view of this Court's holding that the Second Amendment is

not a source of individual rights and that therefore plaintiff has not

alleged an infringement of a right protected by the Second Amend-

ment, the Court does not decide this question.

48a

he visits. Jd. This right does not, however, guarantee to

the temporary visitor of a state the enjoyment of all the

rights enjoyed by bona fide residents of that state.” The

Supreme Court has explained:

Like many other constitut‘onal provisions, the privi-

leges and immunities clause is not an absolute. It

does bar discrimination against citizens of other

States where there is no substantial reason for the

discrimination beyona the mere fact that they are

citizens of other States. But it does not preclude

“disparity of treatment in the many situations where

there are perfectly valid independent reasons for it.

Thus the inquiry in each case must be concerned

with whether such reasons do exist and whether the

degree of discrimination bears a close relation to

them. The inquiry must also, of course, be con-

ducted with the due regard for the principle that the

states should have considerable leeway in analyzing

local evils and in prescribing appropriate cures.

Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 92

L.Ed. 1460 (1948).

This Court finds that New York’s permit scheme bears a

close relationship to substantial and valid reasons for the

disparate treatment of nonresident travelers, beyond the

mere fact that they are citizens of other states. New York

clearly has a strong interest in licensing firearms. “The

licensing procedures set forth in the statute are designed

* As stated by the court in Martinez v. Bynum:

A bona fide residence requirement, appropriately defined and

uniformly applied, furthers the substantial state interest in as-

suring that services provided for its residents are enjoyed only

by residents. Such a requirement ... [generally] does not bur-

den or penalize the constitutional right of interstate travel, for

any person is free to move to a State and to establish residence

there. A bona fide residence requirement simply requires that

the person does establish residence before demanding the ser-

vices that are restricted to residents.

461 U.S. 321, 328-29, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983).

49a

to insure that only persons of acceptable background and

character are permitted to carry and possess certain

handguns. They are further designed to provide a method

of recording information on the identity of persons possess-

ing such weapons and the weapons themselves.” Jn re

Davies, 133 Misc.2d 38, 506 N.Y.S.2d 626, 628

(N.Y.Sup.Ct.1986); accord People v. Moore, 127 Misc.2d

402, 486 N.Y.S.2d 642, 644 (N.Y.City Crim.Ct.1985).

Thus, the proper processing of permit applications is

“vitally essential to public order and safety.” Federation of

N.Y. State Rifle-and Pistol Clubs, Inc. v. McGuire, 101

Misc.2d 104, 420 N.Y.S.2d 602, 603 (N.Y.Sup.Ct.1979). In

ruling on a permit application the licensing authority must

investigate all statements in the application, take finger-

prints and physical descriptive data and check the appli-

cant’s criminal record through federal and state authori-

ties. See N.Y. Penal Law § 400.00(4). One court observed

that “it would be impossible to thoroughly check first of all

who is validly traveling through the state, and secondly

_ make a complete check as to background and character.”

People v. Perez, 67 Misc.2d 911, 325 N.Y.S.2d 183, 186

(1971). The state defendants correctly contend that “[t]he

practical implications of requiring New York to accept ap-

plications from all nonresidents are apparent. First, the

strain on investigatory resources would be significantly

increased. More importantly, however, the ability to ob-

tain, and verify, information would be negatively impacted

were New York officials required to make inquiries in

other states. Nor can it be argued that New York could

simply enter into agreements with other jurisdictions to do

such work for the licensing county as to do so would run

a significant risk of a lack of uniformity in the licensing

regime.”

The administrative problems in investigating, monitor-

ing, enforcing and revoking permits where the applicant

does not have residency, employment or business ties with

New York and the resultant likelihood of errors, would be

inimical to New York’s scheme of licensing firearms as a

50a

means of controlling their possession for the public good.

Accordingly, as the state defendants contend, New York

acted reasonably in denying the privilege to those with

relatively remote contacts to New York. Likewise, allow-

ing nonresidents with licenses from other states to carry

weapons in New York without complying with New York

requirements has the potential to present administrative

problems and interfere with the achievement of New

York’s licensing goals.

The Court concludes that 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. See Perez, 325 N.Y.S.2d at 185

(“The substantial danger to the public interest which

would be caused by the unrestricted flow of dangerous

weapons into and through the state, possessed by count-

less travelers, warrants the degree of discrimination set

out [in] the statute.”); Application of Ware, 474 A.2d 131,

132-33 (Del.Sup.Ct.1984) (rejecting the petitioner’s argu-

ment that Delaware’s refusal to allow nonresidents to

carry concealed deadly weapons in the state offends the

Privileges and Immunities Clause and finding that “the

factor of residence has a legitimate connection with the

regulation in question so that such a classification is justi-

fiable.”). Thus, the Court rejects plaintiff’s argument that

New York’s permit scheme impermissibly impairs his right

to travel.

Equal Protection

As the Supreme Court has observed: “The Fourteenth

Amendment’s promise that no person shall be denied the

equal protection of the laws must coexist with the practical

necessity that most legislation classifies for one purpose or

another, with resulting disadvantage to various groups or

persons.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct.

1620, 134 L.Ed.2d 855 (1996). Accordingly, the Supreme

Court has “attempted to reconcile the principle with the

reality by stating that, if a law neither burdens a funda-

mental right nor targets a suspect class, [the court] will

5la

uphold the legislative classification so long as it bears a

rational relation to some legitimate end.” Jd. Where,

however, a state statute burdens a fundamental right or

targets a suspect class, it is subject to heightened scrutiny

under the Fourteenth Amendment’s Equal Protection

Clause. See City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

Here, plaintiff asserts that the Second Amendment se-

cures a fundamental individual right to keep and bear

arms and that therefore New York’s statutory permit

scheme, which burdens nonresidents’ exercise of that

right, is subject to strict scrutiny under the Equal Protec-

tion Clause. Having concluded, however, that under the

present state of the law, plaintiff has no individual Second

Amendment right to own or possess weapons, the Court

applies rational-basis review in evaluating plaintiff’s

equal protection challenge to the statutory scheme. See

Toner, 728 F.2d at 128 (applying rational basis standard to

equal protection challenge to federal firearms statute

“since the right to possess a gun is clearly not a fundamen-

tal right”); Silveira, 312 F.3d at 1088 (same).

In undertaking rational-basis review, the Court notes

that “the general rule is that legislation is presumed to be

valid and will be sustained if the classification drawn by

the statute is rationally related to a legitimate state inter-

est.” City of Cleburne, 473 U.S. at 439, 105 S.Ct. 3249, 87

L.Ed.2d 313 (1986). Under the rational-basis standard,

the party attacking a legislative classification bears the

burden of demonstrating that there is no reasonable basis

for the challenged distinction. See Silveira, 312 F.3d at

1089.

_ For the reasons set forth above in the discussion of the

right to travel, the Court finds that New York has a rea-

sonable basis for the challenged distinction. Accordingly,

plaintiff has not demonstrated that there is no rational

connection between the state’s objective for its legislative

classification and the means by which it classifies its citi-

52a

zens. See id. at 1088-89. His equal protection argument

lacks merit.

Substantive Due Process

In reviewing plaintiff’s claim that he was deprived of

substantive due process, the Court recognizes that “[t]he

touchstone of due process is protection of the individual

against arbitrary action of government|.]” Wolff v. McDon-

nell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935

(1974); accord Tenenbaum v. Williams, 193 F.3d 581, 600

(2d Cir.1999). “[Ojnly the most egregious official conduct

can be said to be arbitrary in the constitutional sense[.]”

County of Sacramento v. Lewis, 523 U.S. 833, 846, 118

S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citations and internal

quotes omitted). “[T]he due process clause was intended to

prevent government officials from abusing [their] power,

or employing it as an instrument of oppression.” Id. (cita-

tions and internal quotes omitted). “To this end, for half a

century now [the Supreme Court has] ... spoken of the

cognizable level of executive abuse of power as that which

shocks the conscience.” Jd. Measured by this standard,

plaintiff’s allegations fall far short of stating a claim for

deprivation of substantive due process.

CONCLUSION

Inasmuch as there are no material factual issues bear-

ing on plaintiff’s motion for interim relief, there is no need

for a hearing with respect to that motion and no basis to

consolidate such a hearing with a trial on the merits.

Plaintiff has not demonst .-ed his entitlement to interim

relief against any defen at because he has not demon-

strated irreparable ha:~ should an injunction not be

granted, nor has he shown either a likelihood of success on

the merits or sufficiently serious questions going to the

merits. See Resolution Trust Corp. v. Elman, 949 F.2d

624, 626 (2d Cir.1991).

With respect to the state defendants’ motion to dismiss

the complaint, the Court has read the complaint gener-

ously, accepting the truth of and drawing all reasonable

inferences from all well-pleaded factual allegations. See

53a

Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d

Cir.1993). The Court concludes that it appears beyond

doubt that plaintiff can prove no set of facts which would

entitle him to relief. See Valmonte v. Bane, 18 F.3d

992, 998 (2d Cir.1994). Accordingly, the complaint is dis-

missed in its entirety insofar as it pertains to the state

defendants.

It is therefore

ORDERED that plaintiff’s motion for a preliminary in-

junction, permanent injunction and declaratory judgment

pending final judgment (Dkt. No: 2) is denied as to all de-

fendants; and it is further

ORDERED that plaintiff's motion to consolidate the

trial on .i:e merits with a hearing on the application for

a preliminary injunction (Dkt. No. 7) is denied; and it is

further

ORDERED that the cross motion by defendants George

E. Pataki, in his official capacity as Governor of New York,

Eliot Spitzer, in his official capacity as Attorney General of

New York, and James W. McMahon, in his official capacity

as Superintendent, New York State Police, to dismiss the

complaint (Dkt. No. 10) is granted and ail claims against

them are dismissed in their entirety.

IT IS SO ORDERED.

54a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S. COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

Roseann B. MacKechnie

CLERK

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, Foley Square, in the City of

New York, on the 21st day of July two thousand five.

DAVID D. BACH,

Plaintiff-Appellant,

v. No. 03-9123

GEORGE PATAKI, IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF NEW YORK, ET AL.,

Defendants-Appellees.

———

[July 21, 2005]

A petition for panel rehearing and a petition for rehearing

en banc having been filed herein by the appellant David D.

Bach. Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en banc

has been transmitted to the judges for the court in regular

active service and to any other judge that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

by ;

/s/ Arthur M. Heller

Arthur M. Heller, Motions Staff Attorney

55a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second Amendment to the United States Constitu-

tion provides:

A well regulated Militia, being necessary to the security

of a free State; the right of the people to keep and bear

Arms, shall not be infringed.

The Privileges and Immunities Clause, Article IV, Sec-

tion 2, provides:

The Citizens of each State shall be entitled to all Privi-

leges and Immunities of Citizens in the several States.

56a

42 U.S.C. § 1983 provides:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress, except that in any action brought against a

judicial officer for an act or omission taken in such offi-

cer’s judicial capacity, injunctive relief shail not be

granted unless a declaratory decree was violated or de-

claratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of

the District of Columbia.

57a

New York Penal Law § 265.00 provides:

§ 265.00 Definitions

As used in this article and in article four hundred, the

following terms shall mean and include:

1. “Machine-gun” means a weapon of any description,

irrespective of size, by whatever name known, loaded or

unloaded, from which a number of shots or bullets may be

rapidly or automatically discharged from a magazine with

one continuous pull of the trigger and includes a sub-

machine gun.

2. “Firearm silencer” means any instrument, attach-

ment, weapon or appliance for causing the firing of any

gun, revolver, pistol or other firearms to be silent, or in-

tended to lessen or muffle the noise of the firing of any

gun, revolver, pistol or other firearms.

3. “Firearm” means (a) any pistol or revolver; or (b) a

shotgun having one or more barrels less than eighteen

inches in length; or (c) a rifle having one or more barrels

less than sixteen inches in length; or (d) any weapon

made from a shotgun or rifle whether by alteration, modi-

fication, or otherwise if such weapon as altered, modified,

or otherwise has an overall length of less than twenty-six

inches; or (e) an assault weapon. For the purpose of this

subdivision the length of the barrel on a shotgun or rifle

shall be determined by measuring the distance between

the muzzle and the face of the bolt, breech, or breechlock

when closed and when the shotgun or rifle is cocked; the

overall length of a weapon made from a shotgun or rifle is

the distance between the extreme ends of the weapon

measured along a line parallel to the center line of the

bore. Firearm does not include an antique firearm.

4. “Switchblade knife” means any knife which has a

blade which opens automatically by hand pressure ap-

plied to a button, spring or other device in the handle of

the knife.

58a

5. “Gravity knife” means any knife which has a blade

which is released from the handle or sheath thereof by the

force of gravity or the application of centrifugal force

which, when released, is locked in place by means of a

button, spring, lever or other device. .

5-a. “Pilum ballistic knife” means any knife which has

a blade which can be projec..< from the handle by hand

pressure applied to a button, lever, spring or other device

in the handle of the knife.

5-b. “Metal knuckle knife” means a weapon that, when

closed, cannot function as a set of metal knuckles, nor as a

knife and when open, can function as both a set of metal

knuckles as well as a knife.

6. “Dispose of” means to dispose of, give, give away,

lease-loan, keep for sale, offer, offer for sale, sell, transfer

and otherwise dispose of.

7. “Deface” means to remove, deface, cover, alter or de-

stroy the manufacturer’s serial number or any other dis-

tinguishing number or identification mark.

8. “Gunsmith” means any person, firm, partnership,

corporation or company who engages in the business of

repairing, altering, assembling, manufacturing, cleaning,

polishing, engraving or trueing, or who performs any me-

chanical operation on, any firearm, large capacity ammu-

nition feeding device or machine-gun.

9. “Dealer in firearms” means any person, firm, part-

nership, corporation or company who engages in the busi-

ness of purchasing, selling, keeping for sale, !oaning, leas-

ing, or in any manner disposing of, any asscult weapon,

large capacity ammunition feeding device, pistol or re-

volver.

10. “Licensing officer” means in the city of New York

the police commissioner of that city; in the county of Nas-

sau the commissioner of police of that county; in the

county of Suffolk the sheriff of that county except in the

59a

towns of Babylon, Brookhaven, Huntington, Islip and

Smithtown, the commissioner of police of that county; for

the purposes of section 400.01 of this chapter the superin-

tendent of state police; and elsewhere in the state a judge

or justice of a court of record having his office in the

county of issuance.

11. “Rifle’ means a weapon designed or redesigned,

made or remade, and intended to be fired from the shoul-

der and designed or redesigned and made or remade to

use the energy of the explosive in a fixed metallic car-

tridge to fire only a single projectile through a rifled bore

for each single pull of the trigger.

12. “Shotgun” means a weapon designed or redesigned,

made or remade, and intended to be fired from the shoul-

der and designed or redesigned and made or remade to

use the energy of the explosive in a fixed shotgun shell to

fire through a smooth bore either a number of ball shot or

a single projectile for each single pull of the trigger.

13. “Cane Sword” means a cane or swagger stick hav-

ing concealed within it a blade that may be used as a

sword or stilletto.

14. [See also subd. 14 below] “Chuka stick” means any

device designed primarily as a weapon, consisting of two

or more lengths of a rigid material joined together by a

thong, rope or chain in such a manner as to allow free

movement of a portion of the device while held in the

hand and capable of being rotated in such a manner as to

inflict serious injury upon a person by striking or choking.

These devices are also known as nunchakus and centrifu-

gal force sticks.

14. [See also subd. 14 above] “Antique firearm” means:

Any unloaded muzzle loading pistol or revolver with a

matchlock, flintlock, percussion cap, or similar type of ig-

nition system, or a pistol or revolver which uses fixed car-

tridges which are no longer available in the ordinary

channels of commercial trade.

60a

15. “Loaded firearm” means any firearm loaded with

ammunition or any firearm which is possessed by one

who, at the same time, possesses a quantity of ammuni-

tion which may be used to discharge such firearm.

15-a. “Electronic dart gun” means any device designed

primarily as a weapon, the purpose of which is to momen-

tarily stun, knock out or paralyze a person by passing

an electrical shock to such person by means of a dart or

projectile. 7 ‘

15-b. “Kung Fu star” means a disc-like object with

sharpened points on the circumference thereof and is de-

signed for use primarily as a weapon to be thrown.

15-c. “Electronic stun gun” means any device designed

primarily as a weapon, the purpose of which is to stun,

cause mental disorientation, knock out or paralyze a per-

son by passing a high voltage electrical shock to such

person.

16. “Certified not suitable to possess a self-defense

spray device, a rifle or shotgun” means that the director or

physician in charge of any hospitai or institution for men-

tal illness, public or private, has certified to the superin-

tendent of state police or to any organized police depart-

ment of a county, city, town or village of this state, that a

person who has been judicially adjudicated incompetent,

or who has been confined to such institution for mental

illness pursuant to judicial authority, is not suitable to

possess a self-defense spray device, as defined in section

265.20 of this article, or a rifle or shotgun.

17. “Serious offense” means (a) any of the following of-

fenses defined in the former penal law as in force and ef-

fect immediately prior to September first, nineteen hun-

dred sixty-seven: illegally using, carrying or possessing a

pistol or other dangerous weapon; making or possessing

burglar’s instruments; buying or receiving stolen prop-

erty; unlawful entry of a building; aiding escape from

prison; that kind of disorderly conduct defined in subdivi-

6la

sions six and eight of section seven hundred twenty-two of _

such former penal law; violations of sections four hundred

eighty-three, four hundred eighty-three-b, four hundred

eighty-four-h and article one hundred six of such former

penal law; that kind of criminal sexual act or rape which

was designated as a misdemeanor; violation of section

seventeen hundred forty-seven-d and seventeen hundred

forty-seven-e of such former penal law; any violation of

any provision of article thirty-three of the public health

law relating to narcotic drugs which was defined as a mis-

demeanor by section seventeen hundred fifty-one-a of

such former penal law, and any violation of any provision

of article thirty-three-A of the public health law relating

to depressant and stimulant drugs which was defined as a

misdemeanor by section seventeen hundred forty-seven-b

of such former penal law.

(b) [As amended by L.1999, c. 635, § 11. See, also, par.

(b) below.] any of the following offenses defined in the pe-

nal law: illegally using, carrying or possessing a pistol or

other dangerous weapon; possession of burglar’s tools;

criminal! possession of stolen property in the third degree;

escape in the third degree; jostling; fraudulent accosting;

that kind of loitering defined in subdivision three of sec-

tion 240.35; endangering the welfare of a child; the of-

fenses defined in article two hundred thirty-five; issuing

abortional articles; permitting prostitution; promoting

prostitution in the third degree; stalking in the fourth de-

gree; stalking in the third degree; the offenses defined in

article one hundred thirty; the offenses defined in article

two hundred twenty.

(b) {As amended by L.1999, c. 635, § 15. See, also, par.

(b) above.] any of the following offenses defined in the pe-

nal law: illegally using, carrying or possessing a pistol or

other dangerous weapon; possession of burglar’s tools;

criminal possession of stolen property in the third degree;

escape in the third degree; jostling; fraudulent accosting;

that kind of loitering defined in subdivision three of sec-

tion 240.35; endangering the welfare of a child; the of-

62a

fenses « © ied in article two hundred thirty-five; issuing

abortional articles; permitting prostitution; promoting

prostitution in the third degree; stalking in the third de-

gree; stalking in the fourth degree; the offenses defined in

article one hundred thirty; the offenses defined in article

two hundred twenty.

18. “Armor piercing ammunition” means any ammuni-

tion capable of being used in pistols or revolvers contain-

ing a projectile or projectile core, or a projectile or projec-

tile core for use in such ammuniticn, that is constructed

entirely (excluding the presence of traces of other sub-

stances) from one or a combination of any of the following:

tungsten alloys, steel, iron, brass, bronze, beryllium cop-

per, or uranium.

19. “Duly authorized instructor” means (a) a duly

commissioned officer of the United States army, navy,

marine corps or coast guard, or of the national guard of

the state of New York; or (b) a duly qualified adult citizen

of the United States who has been granted a certificate as

an instructor in small arms practice issued by the United

States army, navy or marine corps, or by the adjutant

general of this state, or by the national rifle association of

America, a not-for-profit corporation duly organized under

the laws of this state; or (c) by a person duly qualified and

designated by the department of environmental conserva-

tion under paragraph d of subdivision six of section 11-

0713 of the environmental conservation law as its agent

in the giving of instruction and the making of certifica-

tions of qualification in responsible hunting practices.

20. “Disguised gun” means any weapon or device capa-

ble of being concealed on the person from which a shot can

be discharged through the energy of an explosive and is

designed and intended to appear to be something other

than a gun. ,

21. “Semiautomatic” means any repeating rifle, shot-

gun or pistol, regardless of barrel or overall! length, which

utilizes a portion of the energy of a firing cartridge or

63a

shell to extract the fired cartridge case or spent shell and

chamber the next round, and which requires a separate

pull of the trigger to fire each cartridge or shell.

22. “Assault weapon” means (a) a semiautomatic rifle

that has an ability to accept a detachable magazine and

has at least two of the following characteristics:

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes conspicuously beneath

the action of the weapon;

(111) a bayonet mount;

(iv) a flash suppressor or threaded barrel designed to

accommodate a flash suppressor;

(v) a grenade launcher; or

(b) a semiautomatic shotgun that has at least two of the

following characteristics:

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes conspicuously beneath

the action of the weapon;

(iii) a fixed magazine capacity in excess of five rounds;

(iv) an ability to accept a detachable magazine; or

(c) a semiautomatic pistol that has an ability to accept a

detachable magazine and has at least two of the following

characteristics:

(i) an ammunition magazine that attaches to the pistol

outside of the pistol grip;

(ii) a threaded barrel capable of accepting a barrel ex-

tender, flash suppressor, forward handgrip, or silencer;

(iii) a shroud that is attached to, or partially or com-

pletely encircles, the barrel and that permits the shooter

to hold the firearm with the nontrigger hand without be-

ing burned;

64a

(iv) a manufactured weight of fifty ounces or more when

the pistol is unloaded;

(v) a semiautomatic version of an automatic rifle, shot-

gun or firearm; or

(d) any of the weapons, or functioning frames or receiv-

ers of such weapons, or copies or duplicates of such weap-

ons, in any caliber, known as:

(i) Norinco, Mitchell, and Poly Technologies Avtomat

Kalashnikovs (all models);

(ii) Action Arms Israeli Military Industries UZI and

Galil;

(iii) Beretta Ar70 (SC-70);

(iv) Colt AR-15;

(v) Fabrique National FN/FAL, FN/LAR, and FNC;

(vi) SWD M-10, M-11, M-11/9, and M-12;

(vii) Steyr AUG;

(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and

(ix) revolving cylinder shotguns, such as (or similar to)

the Street Sweeper and Striker 12;

(e) provided, however, that such term does not include:

(i) any rifle, shotgun or pistol that (A) is manually oper-

ated by bolt, pump, lever or slide action; (B) has been ren-

dered permanently inoperable; or (C) is an antique fire-

arm as defined in 18 U.S.C. 921(a)(16);

(ii) a semiautomatic rifle that cannot accept a detach-

able magazine that holds more than five rounds of

ammunition;

(iii) a semiautomatic shotgun that cannot hold more

than five rounds of ammunition in a fixed or detachable

magazine;

(iv) a rifle, shotgun or pistol, or a replica or a duplicate

thereof, specified in Appendix A to section 922 of 18

65a

U.S.C. as such weapon was manufactured on October

first, nineteen hundred ninety-three. The mere fact that a

weapon is not listed in Appendix A shall not be construed

to mean that such weapon is an assault weapon; or

(v) a semiautomatic rifle, a semiautomatic shotgun or a

semiautomatic pistol or any of the weapons defined in

paragraph (d) of this subdivision lawfully possessed prior

to September fourteenth, nineteen hundred ninety-four.

23. “Large capacity ammunition feeding device” means

a magazine, belt, drum, feed strip, or similar device,

manufactured after September thirteenth, nineteen hun-

dred ninety-four, that has a capacity of, or that can be

readily restored or converted to accept, more than ten

rounds of ammunition; provided, however, that such term

does not include an attached tubular device designed to

accept, and capable of operating only with, .22 caliber rim-

fire ammunition. :

66a

New York Penal Law § 265.91 provides:

§ 265.01 Criminal possession of a weapon in the

fourth degree

A person is guilty of criminal possession of a weapon in

the fourth degree when:

(1) He possesses any firearm, electronic dart gun, elec-

tronic stun gun, gravity knife, switchblade knife, pilum

ballistic knife, metal knuckle knife, cane sword, billy,

blackjack, bludgeon, metal knuckles, chuka stick, sand

bag, sandclub, wrist-brace type slingshot or slungshot,

shirken or “Kung Fu star”; or

(2) He possesses any dagger, dangerous knife, dirk, ra-

zor, stiletto, imitation pistol, or any other dangerous or

deadly instrument or weapon with intent to use the same

unlawfully against another; or

(3) He knowingly has in his possession a rifle, shotgun

or firearm in or upon a building or grounds, used for edu-

cational purposes, of any school, college o. university, ex-

cept the forestry lands, wherever located, owned and

maintained by the State University of New York college of

environmental science and forestry, without the written

authorization of such educational institution; or

(4) He possesses a rifle or shotgun and has been con-

- victed of a felony or serious offense; or

(5) He possesses any dangerous or deadly weapon and is

not a citizen of the United States; or

(6) He is a person who has been certified not suitable to

possess a rifle or shotgun, as defined in subdivision six-

teen of section 265.00, and refuses to yield possession of

such rifle or shotgun upon the demand of a police officer.

Whenever a person is certified not suitable to possess a

rifle or shotgun, a member of the police department to

which such certification is made, or of the state police,

shall forthwith seize any rifle or shotgun possessed by

such person. A rifle or shotgun seized as herein provided

67a ~

shall not be destroyed, but shall be delivered to the head-

quarters of such police department, or state police, and

there retained until the aforesaid certificate has been re-

scinded by the director or physician in charge, or other

disposition of such rifle or shotgun has been ordered or

authorized by a tourt of competent jurisdiction.

(7) He knowingly possesses a bullet containing an ex-

plosive substance designed to detonate upon impac*.

(8) He possesses any armor piercing ammunition with

intent to use the same unlawfully against another.

Criminal possession of a weapon in the fourth degree is

a class A misdemeanor.

68a

New York Penal Law § 265.02 provides:

§ 265.02 Criminal possession of a weapon in the

third degree

A person is guilty of criminal possession of a weapon in

the third degree when:

(1) He commits the cri 1e of criminal possession of a

weapon in the fourth degree as defined in subdivision one,

two, three or five of section 265.01, and has been previ-

ously convicted of any crime; or

(2) He possesses any explosive or incendiary bomb,

bombshell, firearm silencer, machine-gun or any other

firearm or weapon simulating a machine-gun and which is

adaptable for such use; or

(3) He knowingly has in his possession a machine-gun,

firearm, rifle or shotgun which has been defaced for the

purpose of concealment or prevention of the detection of a

crime or misrepresenting the identity of such machine-

gun, firearm, rifle or shotgun; or

(4) Such person possesses any loaded firearm. Such

possession shall not, except as provided in subdivision one

or seven, constitute a violation of this section if such pos-

session takes place in such person’s home or place of busi-

ness; or

(5)(i) Such person possesses twenty or more firearms; or

(ii) such person possesses a firearm and has been previ-

ously convicted of a felony or a class A misdemeanor de-

fined in this chapter within the five years immediately

preceding the commission of the offense and such posses-

sion did not take place in the person’s home or place of

business; or

(6) Such person knowingly possesses any disguised gun;

or

(7) Such person possesses an assault weapon; or

69a

(8) Such person possesses a large capacity ammunition

feeding device.

Criminal possession of a weapon in the third degree is a

class D felony.

70a

New York Penal Law § 265.20 provides:

§ 265.20 Exemptions

a. Sections 265.01, 265.02, 265.03, 265.04, 265.05,

265.10, 265.11, 265.12, 265.13, 265.15 and 270.05 shall

not apply to:

1. Possession of any of the weapons, instruments, ap-

pliances or substances specified in sections 265.01, 265.02,

265.03, 265.04, 265.05 and 270.05 by the following:

(a) Persons in the military service of the state of New

York when duly authorized by regulations issued by the

adjutant general to possess the same.

(b) Police officers as defined in subdivision thirty-four

of section 1.20 of the criminal procedure law.

(c) Peace officers as defined by section 2.10 of the

criminal procedure law.

(d) Persons in the military or other service of the

United States, in pursuit of official duty or when duly au-

thorized by federal law, regulation or order to possess the

same.

(e) Persons employed in fulfilling defense contracts

with the government of the United States or agencies

thereof when possession of the same is necessary for

manufacture, transport, installation and testing under

the requirements of such contract.

(f) A person voluntarily surrendering such weapon, in-

strument, appliance or substance, provided that such sur-

render shall be made to the superintendent of the division

of state police or a member thereof designated by such su-

perintendent, or to the sheriff of the county in which such

person resides, or in the county of Nassau or in the towns

of Babylon, Brookhaven, Huntington, Islip and Smith-

town in the county of Suffolk to the commissioner of police

or a member of the police department thereof designated

by such commissioner, or if such person resides in a city,

town other than one named in this subparagraph, or

71a

village to the police commissioner or head of the police

force or department thereof or to a member of the force or

department designated by such commissioner or head;

and provided, further, that the same shall be surrendered

by such person in accordance with such terms and condi-

tions as may be established by such superintendent, sher-

iff, police force or department. Nothing in this paragraph

shall be construed as granting immunity from prosecution

for any crime or offense except that of unlawful possession

of such weapons, instruments, appliances or substances

surrendered as herein provided. A person who possesses

any such weapon, instrument, appliance or substance as

an executor or administrator or any other lawful posses-

sor of such property of a decedent may continue to possess

such property for a period not over fifteen days. If such

property is not lawfully disposed of within such period the

possessor shall deliver it to an appropriate official de-

scribed in this paragraph or such property may be deliv-

ered to the superintendent of state police. Such officer

shall hold it and shall thereafter deliver it on the written

request of such executor, administrator or other lawful

possessor of such property to a named person, provided

such named person is licensed to or is otherwise lawfully

permitted to possess the same. If no request to deliver the

property is received by such official within two years of

the delivery of such property, such official shall dispose of

it in accordance with the provisions of section 400.05 of

this chapter.

2. Possession of a machine-gun, large capacity ammu-

nition feeding device, firearm, switchblade knife, gravity

knife, pilum ballistic knife, billy or blackjack by a warden,

superintendent, headkeeper or deputy of a state prison,

penitentiary, workhouse, county jail or other institution

for the detention of persons convicted or accused of crime

or detained as witnesses in criminal cases, in pursuit of

official duty or when duly authorized by regulation or or-

der to possess the same.

72a

3. Possession of a pistol or revolver by a person to

whom a license therefor has been issued as provided un-

der section 400.00 or 400.01 of this chapter; provided, that

such a license shall not preclude a conviction for the of-

fense defined in subdivision three of section 265.01 of this

article.

4. Possession of a rifle, shotgun or longbow for use

while hunting, trapping or fishing, by a person, not a citi-

zen of the United States, carrying a valid license issued

pursuant to section 11-0713 of the environmental conser-

vation law.

5. Possession of a rifle or shotgun by a person who has

been convicted as specified in subdivision four of section

265.01 to whom a certificate of good conduct has been is-

sued pursuant to section seven hundred three-b of the

correction law. |

6. Possession of a switchblade or gravity knife for use

while hunting, trapping or fishing by a person carrying a

valid license issued to him pursuant to section 11-0713 of

the environmental conservation law.

7. Possession, at an indoor or outdoor shooting range

for the purpose of loading and firing, of a rifle or shotgun,

the propelling force of which is gunpowder by a person

under sixteen years of age but not under twelve, under

the immediate supervision, guidance and instruction of (a)

a duly commissioned officer of the United States army,

navy, air force, marine corps or coast guard, or of the na-

tional guard of the state of New York; or (b) a duly quali-

fied adult citizen of the United States who has been

granted a certificate as an instructor in small arms prac-

tice issued by the United States army, navy, air force or

marine corps, or by the adjutant general of this state, or

by the national rifle association of America, a not-for:

profit corporation duly organized under the laws of this

state; or (c) a parent, guardian, or a person over the age

of eighteen designated in writing by such parent or guard-

ian who shall have a certificate of qualification in respon-

73a

sible hunting, including safety, ethics, and landowner

relations-hunter relations, issued or honored by the de-

partment of environmental conservation; or (d) an agent

of the department of environmental conservation ap-

pointed to conduct courses in responsible hunting prac-

tices pursuant to article eleven of the environmental con-

servation law. A

7-a. Possession and use, at an indoor or outdoor pistol

range located in or on premises owned or occupied by a

duly incorporated organization organized for conservation

purposes or to foster proficiency in small arms or at a tar-

get pistol shooting competition under the auspices of or

approved by the national rifle association for the purpose

of loading and firing the same, by a person duly licensed

to possess a pistol or revolver pursuant to section 400.00

or 400.01 of this chapter of a pistol or revolver duly so li-

censed to another person who is present at the time.

7-b. Possession and use, at an indoor or outdoor pistol

range located in or on premises owned or occupied by a

duly incorporated organization organized for conservation

purposes or to foster proficiency in small arms or at a tar-

get pistol shooting competition under the auspices of or

approved by the national rifle association for the purpose

of loading and firing the same, by a person who has ap-

plied for a license to possess a pistol or revolver and pre-

license possession of same pursuant to section 400.00 or

400.01 of this chapter, who has not been previously denied

a license, been previously convicted of a felony or serious

offense, and who does not appear to be, or pose a threat to

be, a danger to himself or to others, and who has been ap-

proved for possession and use herein in accordance with

section 400.00 or 400.01 of this chapter; provided how-

ever, that such possession shall be of a pistol or revolver

duly licensed to and shall be used under the supervision,

guidance and instruction of, a person specified in para-

graph seven of this subdivision and provided further that

such possession and use be within the jurisdiction of the

licensing officer with whom the person has made applica-

74a

tion therefor or within the jurisdiction of the superinten-

dent of state police in the case of a retired sworn rn’ mber

of the division of state police who has made an application

pursuant to section 400.01 of this chapter.

7-c. Possession for the purpose of loading and firing, of

a rifle, pistol or shotgun, the propelling force of which may

be either air, compressed gas or springs, by a person un-

der sixteen years of age but not under twelve, under the

immediate supervision, guidance and instruction of (a) a

duly commissioned officer of the United States army,

navy, marine corps or coast guard, or of the national

guard of the state of New York; or (b) a duly qualified

adult citizen of the United States who has been granted a

certificate as an instructor in small arms practice issued

by the United States army, navy or marine corps, or by

the adjutant general of this state, or by the national rifle

association of America, a not-for-profit corporation duly

organized under the laws of this state; or (c) a parent,

guardian, or a person over the age of eighteen designated

in writing by such parent or guardian who shall have a

certificate of qualification in responsible hunting, includ-

ing safety, ethics, and landowner relations-hunter rela-

tions, issued or honored by the department of environ-

mental conservation.

7-d. Possession, at an indoor or outdoor shooting range

for the purpose of loading and firing, of a rifle, pistol or

shotgun, the propelling force of which may be either air,

compressed gas or springs, by a person under twelve years

of age, under the immediate supervision, guidance and

instruction of (a) a duly commissioned officer of the

United States army, navy, marine corps or coast guard, or

of the national guard of the state of New York; or (b) a

duly qualified adult citizen of the United States who has

been granted a certificate as an instructor in small arms

practice issued by the United States army, navy or marine

corps, or by the adjutant general of this state, or by the

national rifle association of America, a not-for-profit cor-

poration duly organized under the laws of this state; or

75a

(c) a parent, guardian, or a person over the age of eight-

een designated in writing by such parent or guardian

who shall have a certificate of qualification in respon-

sible hunting, including safety, ethics, and landowner

relations-hunter relations, issued or honored by the de-

partment of environmental conservation.

7-e. Possession and use of a pistol or revolver, at an in-

door or outdoor pistol range located in or on premises

owned or occupied by a duly incorporated organization

organized for conservation purposes or to foster profi-

ciency in small arms or at a target pistol shooting compe-

tition under the auspices of or approved by an association

or organization described in paragraph 7-a of this subdivi-

sion for the purpose of loading and firing the same by a

person at least eighteen years of age but under the age of

twenty-one who has not been previously convicted of a fel-

ony or serious offense, and who does not appear to be, or

pose a threat to be, a danger to himself or to others; pro-

vided however, that such possession shall be of a pistol or

revolver duly licensed to and shall be used under the im-

mediate supervision, guidance and instruction of, a person

specified in paragraph seven of this sub. vision.

8. The manufacturer of machine-guns, assau’* weap-

ons, large capacity ammunition feeding devices, disguised

guns, pilum ballistic knives, switchblade or gravity

knives, billies or blackjacks as merchandise and the dis-

posal and shipment thereof direct to a regularly consti-

tuted or appointed state or municipal police department,

sheriff, policeman or other peace officer, or to a state

prison, penitentiary, workhouse, county jail or other insti-

tution for the detention of persons convicted or accused of

crime or held as witnesses in criminal cases, or to the

military service of this state or of the United States.

9. The regular and ordinary transport of firearms as

merchandise, provided that the person transporting such

firearms, where he knows or has reasonable means of as-

certaining what he is transporting, notifies in writing the

76a

police commissioner, police chief or other law enforcement

officer performing such functions at the place of delivery,

of the name and address of the consignee and the place of

delivery, and withholds delivery to the consignee for such

reasonatie period of time designated in writing by such

police commissioner, police chief or other law enforcement

officer as such official may deem necessary for investiga-

tion as to whether the consignee may lawfully receive and

possess such firearms.

9-a. a. Except as provided in subdivision b hereof, the

regular and ordinary transport of pistols or revolvers by a

manufacturer of firearms to whom a license as a dealer in

firearms has been issued pursuant to section 400.00 of

this chapter, or by an agent or employee of such manufac-

turer of firearms who is otherwise duly licensed to carry a

pistol or revolver and who is duly authorized in writing by

such manufacturer of firearms to transport pistols or re-

volvers on the date or dates specified, directly between

places where the manufacturer of firearms regularly con-

ducts business provided such pistols or revolvers are

transported unloaded, in a locked opaque container. For

purposes of this subdivision, places where the manufac-

turer of firearms regularly conducts business includes,

but is not limited to places where the manufacturer of

firearms regularly or customarily conducts development

or design of pistols or revolvers, or regularly or customar-

ily conducts tests on pistols or revolvers, or regularly or

customarily participates in the exposition of firearms to

the public.

b. The transportation of such pistols or revolvers into,

out of or within the city of New York may be done only

with the consent of the police commissioner of the city of

New York. To obtain such consent, the manufacturer

must notify the police commissioner in writing of the

name and address of the transporting manufacturer, or

agent or employee of the manufacturer who is authorized

in writing by such manufacturer to transport pistols or

revolvers, the number, make and model number of the

77a

firearms to be transported and the place where the manu-

facturer regularly conducts business within the city of

New York and such other information as the commis-

sioner may deem necessary. The manufacturer must not

transport such pistols and revolvers between the desig-

nated places of business for such reasonable period of

time designated in writing by the police commissioner as

such official may deem necessary for investigation and to

give consent. The police commissioner may not unrea-

sonably withhold his consent.

10. Engaging in the business of gunsmith or dealer in

firearms by a person to whom a valid license therefor has

been issued pursuant to section 400.00.

11. Possession of a firearm or large capacity ammuni-

tion feeding device by a police officer or sworn peace offi-

cer of another state while conducting official business

within the state of New York.

12. Possession of a pistol or revolver by a person who is

a member or coach of an accredited college or university

target pistol team while transporting the pistol or re-

volver into or through New York state to participate in a

collegiate, olympic or target pistol shooting competition

under the auspices of or approved by the national rifle as-

sociation, provided such pistol or revolver is unloaded and

carried in a locked carrying case and the ammunition

therefor is carried in a separate locked container.

13. Possession of pistols and revolvers by a person who

is a nonresident of this state while attending or traveling

to or from, an organized competitive pistol match or

league competition under auspices of, or approved by, the

National Rifle Association and in which he is a competi-

tor, within forty-eight hours of such event or by a person

who is a non-resident of the state while attending or trav-

eling to or from an organized match sanctioned by the In-

ternational Handgun Metallic Silhouette Association and

in which he is a competitor, within forty-eight hours of

such event, provided that he has not been previously con-

78a

victed of a felony or a crime which, if committed in New

York, would constitute a felony, and further provided that

the pistols or revolvers are transported unloaded in a

locked opaque container together with a copy of the match

program, match schedule or match registration card.

Such documentation shall constitute prima facie evidence

of exemption, providing that such person also has in his

possession a pistol license or firearms registration card

issued in accordance with the laws of his place of resi-

dence. For purposes of this subdivision, a person licensed

in a jurisdiction which does not authorize such license by

a person who has been previously convicted of a felony

shall be presumed to have no prior conviction. The super-

intendent of state police shall annually review the laws of

jurisdictions within the United States and Canada with

respect to the applicable requirements for licensing or reg-

istration of firearms and:shall publish a list of those juris-

dictions which prohibit possession of a firearm by a per-

son previously convicted of a felony or crimes which if

committed in New York state would constitute a felony.

13-a. Except in cities not wholly contained within a

single county of the state, possession of pistols and revolv-

ers by a person who is a nonresident of this state while

attending or traveling to or from, an organized convention

or exhibition for the display of or education about fire-

arms, which is conducted under auspices of, or approved

by, the National Rifle Association and in which he is a

registered participant, within forty-eight hours of such

event, provided that he has not been previously convicted

of a felony or a crime which, if committed in New York,

would constitute a felony, and further provided that the

pistols or revolvers are transported unloaded in a locked

opaque container together with a copy of the convention or

exhibition program, convention or exhibition schedule or

convention or exhibition registration card. Such docu-

mentation shall constitute prima facie evidence of exemp-

tion, providing that such person also has in his possession

a pistol license or firearms registration card issued in

79a

accordance with the laws of his place of residence. For

purposes of this paragraph, a person licensed in a juris-

diction which does not authorize such license by a person

who has been previously convicted of a felony shall be

presumed to have no prior conviction. The superinten-

deut of state police shall annually review the laws of ju-

risdictions within the United States and Canada with re-

spect to the applicable requirements for licensing or regis-

tration of firearms and shall publish a list of those juris-

dictions which prohibit possession of a firearm by a per-

son previously convicted of a felony or crimes which if

committed in New York state would constitute a felony.

14. Possession in accordance with the provisions of this

paragraph of a self-defense spray device as defined herein

for the protection of a person or property and use of such

self-defense spray device under circumstances which

would justify the use of physical force pursuant to article

thirty-five of this chapter.

(a) As used in this section “self-defense spray device”

shall mean a pocket sized spray device which contains

and releases a chemical or organic substance which is in-

tended to produce temporary physical discomfort or dis-

ability through being vaporized or otherwise dispensed in

the air or any like device containing tear gas, pepper or

similar disabling agent.

(b) The exemption under this paragraph shall not apply

to a person who:

(i) is less than eighteen years of age; or

(ii) has been previously convicted in this state of a fel-

ony or any assault; or

(iii) has been convicted of a crime outside the state of

New York which if committed in New York would consti-

tute a felony or any assault crime.

(c) The department of health, with the cooperation of

the division of criminal justice services and the superin-

80a

tendent of state police, shall develop standards and prom-

ulgate regulations regarding the type of self-defense spray

device which may lawfully be purchased, possessed and

used pursuant to this paragraph. The regulations shall

include a requirement that every self-derense spray device

which may be lawfully purchased, possessed or used pur-

suant to this paragraph have a label which states:

“WARNING: The use of this substance or device for any

purpose other than self-defense is a criminal offense un-

der the law. The contents are-dangerous — use with care.

This device shall not be sold by anyone other than a li-

censed or authorized dealer. Possession of this device by

any person under the age of eighteen or by anyone who

has been convicted of a felony or assault is illegal. Viola-

tors may be prosecuted under the law.”

15. Possession and sale of a self-defense spray device as

defined in paragraph fourteen of this subdivision by a

dealer in firearms licensed pursuant to section 400.00 of

this chapter, a pharmacist licensed pursuant to article

one hundred thirty-seven of the education law or by such

other vendor as may be authorized and approved by the

superintendent of state police.

(a) Every self-defense spray device shal! be accompa-

nied by an insert or inserts which include directions for

use, first aid information, safety and storage information

and which shall also contain a

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