Bach v Pataki: 2nd Circuit says handgun licensing does not violate 2nd

New York has a licensing scheme for carrying a handgun. Among the usual we'll-issue-one-if-we-want-to clauses, it has a residency requirement -- that is, you have to live in New York, or work there full-time, in order to get a permit. The plaintiff in this case, Bach, does neither; he works in the intelligence community and occasionally visits his family in New York, an event which apparantly entails dark alleys and lots of potential kidnappings by foriegn agents. He wants the residency requirement struck down as violating the 2nd Amendment and the "Privileges and Immunities" clause.

The 2nd Amendment argument is fairly strong, except that the judicial system has so far mostly refused to admit it. The judge dismisses it with the quote "The 2nd Amendment is not a source of individual rights." So much for the 2nd Circuit on that issue.

The Privileges and Immunities clause is somewhat trickier. If that clause is read the way the plaintiff requests, it would be impossible for a state to differentiate in its laws between residents of the state and non-residents of the state. A resident of Maine could get a driver's license in Florida and a concealed-carry permit in Idaho. That's possible for some things today (marriage licenses, some concealed-carry licenses) but not for others. Ruling that no differentiation is possible would most likely have significant repercussions, making any judge reluctant to do so. However, the text on its face seems to require something very close to that.

It seems to me that applying the "full faith and credit" clause to compel recognition of his Virginia carry license might ahve been a better argument. All 50 states recognize each other's drivers licenses; why shouldn't all 50 states recognize the right to carry a concealed firearm for self-defense?

Of course, whatever the merits of the argument, the 2nd Circuit disagrees, upholding the lower court's dismissal of the case. No word yet on whether an appeal is planned. I'd like to see one.

The full decision is available here.

UPDATE: Commenters from the New York State Rifle and Pistol Association say [via Alphecca] that the plaintiff in this case might not be well-suited for the appeals process. They describe him as someone who presented himself to the media and the court as a "badass" who needed to be "ready to kill at a moment's notice" because "street thugs and terrorists are hiding in every bush". Since I haven't had any contact with the individual in question, of course, I have no idea of their description is accurate -- but if so, they're probably right, and this might not be the best case for an appeal.

UPDATE: Bach has posted a response in the comment thread at Alphecca. Quoting:

You know Mr. Rieper, I don't mind if someone disagrees with the case or even if they dislike me personally. But I would suggest that you read all the pleadings in their entirety before citing the media as a credible source of information, particularly regarding this case and on issues involving the rights of gun owners in general. I have no doubt that the media reported what it wanted to report and cherry-picked comments from the Complaint to convey whatever impressions they wanted to make. As I said previously, I have not sought out the media and spoke briefly with only one reporter from Syracuse where the case was initially decided. Nor do I have control over what the media reports or how they choose to report it. What is beyond me, is why you continue to perpetuate media reporting that is evidently negative on such an important issue.

The facts in this case are NOT an issue unlike the majority of other gun cases that make it to court. The fact I served in the military as a Navy SEAL and have years of experience handling many different types of small arms in a case about firearm restrictions is not playing up anything. The fact that a terrorist group claimed thousands of lives in NY, VA, & PA in a single day and continue to pose a significant threat at home and abroad is to me, relevant, particularly when, as here NY continues to disarm law-abidng citizens of sister States at its border. And just so there is no misunderstanding, the facts of this case focus neither on terrorism nor my military background. Rather, the facts focus on violent crime and the rights of individuals to have an effective means of protecting themselves and family members from violent criminal acts when traveling interstate. The fact is, NY has some of the toughest gun control laws in the Nation and not suprisingly, some of the hightest violent crime rates. When I filed the lawsuit in 2002, NY accounted for well over 100,000 violent crimes per year according to the FBI's Uniform Crime Statistics. So rather than continue to trash the plaintiff and brag about your organization turning down a case that argues for the rights of individuals to keep and bear arms, why not provide some constructive support.

Perhaps when I return from my tour of duty in Iraq we can get together and discuss the case in person rather than in this forum. Your organization certainly could do a lot of good by helping in any future proceedings such as filing a well written amicus brief.

Dave Bach
Bach v. Pataki

Just as with Jeff, I've got to keep a neutral perspective here, since I don't have a first-hand perspective into any of this. But it's very interesting to watch the back-and-forth.

Posted on 2005-05-11 09:24:16.0 by matthew@triggerfinger.org

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Bach v Pataki: 2nd Circuit says handgun licensing does not violate 2nd

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