OPINION AND ORDER
Before the Court are the Motion to Dismiss of Defendants Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman (the “State Defendants”), (Doc. 80);
I. BACKGROUND
For purposes of deciding the Motions to Dismiss, I assume the facts (but not the conclusions) as alleged in the First Amended Complaint to be true, and for purposes of deciding the Motion and Cross-Motion for Summary Judgment, the following facts are undisputed, except where noted.
The instant case presents a facial and as-applied constitutional challenge to New York Penal Law (“NYPL”) Section 400.00(2)(f), which provides that licenses to “have and carry concealed” handguns “shall be issued” to “any person when proper cause exists for the issuance thereof.” Plaintiffs claim that the statute violates their rights under the Second Amendment to the U.S. Constitution as recognized in the Supreme Court case District of Columbia v. Heller,
A. New York’s Handgun Licensing Scheme
The NYPL provides for the licensed possession of handguns in New York State. Article 265 of the NYPL imposes a general ban on the possession of firearms, see N.Y. Penal Law § 265.01(1), which includes handguns, id. § 265.00(3)(a), but creates various specific exemptions from that ban, see id. § 265.20, including “[possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under [NYPL] section 400.00,”
The provision at issue in this case is Section 400.00(2)(f), which provides that a license “shall be issued to ... have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” Id. § 400.00(2)(f). There is no provision for a license to carry an unconcealed weapon, so for applicants who want to carry a weapon and do not fit in one of the occupational categories, the only way to obtain a license to carry a handgun— whether openly or not — is to meet the requirements, including “proper cause,” of the licensing provision for concealed weapons. Though not defined in the NYPL, the term “proper cause” as used in Section 400.00(2)(f) has been interpreted by New York state courts to mean “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Bando v. Sullivan,
The application process for licenses under Section 400.00(2)(f), often called “full-carry permits,” is administered locally. See N.Y. Penal Law § 400.00(3)-(4). Applications for full-carry permits in Westchester County request information concerning, for example, discharge from employment or the armed forces for cause, criminal history, treatment for alcoholism or drug use, history of mental illness, previous firearm licenses, and physical conditions that could interfere with safe and proper use of a handgun. (State Defs.’ 56.1 ¶¶ 16-17; Pis.’ Resp. 56.1 ¶¶ 16-17.)
Once the investigation is complete, an investigation summary is compiled and, along with the application, submitted to a County Police lieutenant, the Chief Inspector of Administrative Services, and the Commissioner or a Deputy Commissioner for review. (State Defs.’ 56.1 ¶ 21; Pis.’ Resp. 56.1 ¶ 21.) Based upon that review, the Chief Inspector and Commissioner or Deputy Commissioner generate a recommendation as to whether the full-carry permit should be approved or disapproved, (see, e.g., Pis.’ MSJ Exs. C, E, G),
B. The Parties
Individual Plaintiffs are all United States citizens who reside in Westchester County. (State Defs.’ 56.1 ¶¶ 1-5; Pis.’ Resp. 56.1 ¶¶ 1-5.) Plaintiff SAF is a nonprofit membership organization incorpo
C. Plaintiffs’ Permit Applications
In May 2008, Plaintiff Kachalsky applied for a full-carry permit to be able to carry a concealed handgun while in public. (State Defs.’ 56.1 ¶ 25; Pis.’ Resp. 56.1 ¶25.) In his application, Kachalsky asserted that he believed he satisfied Section 400.00(2)(f)’s “proper cause” requirement because he was a U.S. citizen and therefore entitled to “the right to bear arms” under the Second Amendment, “we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others,” and he was “a law-abiding citizen” who had neither “been convicted of a crime” nor “assaulted or threatened to assault another person.” (State Defs.’ 56.1 ¶ 26; Pls.’ Resp. 56.1 ¶ 26.) Upon reviewing Kachalsky’s application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied. (State Defs.’ 56.1 ¶ 27; Pls.’ Resp. 56.1 ¶ 27.) The application, investigation file, and recommendation were forwarded to Defendant Cacace, who, acting as licensing officer, reviewed those materials and issued a decision and order, dated October 8, 2008, denying Kachalsky’s application. (State Defs.’ 56.1 ¶¶ 28-29; Pls.’ Resp. 56.1 ¶¶ 28-29.) Cacace observed that Kachalsky failed to state “any facts which would demonstrate a need for self protection distinguishable from that of the general public,” and that “based upon all the facts and circumstances of this application, it is my opinion that proper cause does not exist for the issuance of an unrestricted ‘full carry’ pistol license.” (State Defs.’ 56.1 ¶ 30; Pls.’ Resp. 56.1 ¶ 30.)
In March 2009, Plaintiff Nikolov applied for a full-carry permit. (State Defs.’ 56.1 ¶ 35; Pis.’ Resp. 56.1 ¶ 35.) In her application, Nikolov asserted that she believed she satisfied Section 400.00(2)(f)’s “proper cause” requirement because she was a “law-abiding citizen,” she possessed a concealed weapon permit in the State of Florida and had neither brandished nor discharged her weapon outside of shooting ranges there, she had completed three firearms safety courses with the National Rifle Association within the previous three years, her experience as a pilot and flight instructor gave her the “calm demeanor ... essential when either involved in or a witness to a potentially dangerous situation,” and she was a transgender female subject to a higher likelihood of being the victim of violence. (State Defs.’ 56.1 ¶ 36; Pis.’ Resp. 56.1 1Í 36.) Upon reviewing Nikolov’s application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied. (State Defs.’ 56.1 ¶ 37; Pis.’ Resp. 56.1 ¶37.) The application, investigation file, and recommendation were forwarded to Defendant Cohen, who, acting as licensing officer, reviewed those materials and issued a decision and order, dated October 2, 2008, denying Nikolov’s application. (State Defs.’ 56.1 ¶¶( 38-39; Pis.’ Resp. 56.1 ¶¶ 38-39.) Cohen observed that “[c]onspicuously absent” from Nikolov’s application “is the report of any type of threat to her own safety,” and “notwithstanding her accomplishments and unblemished record, it cannot be said that the applicant has demonstrated that she has a special need for self-protection distinguishable from that of the general public.” (State Defs.’ 56.1 ¶39; Pis.’ Resp. 56.1 ¶ 39; see Tomari Decl. Ex. O.)
In June 2010, Plaintiff Nance applied for a full-carry permit. (State Defs.’ 56.1 ¶ 47; Pis.’ Resp. 56.1 ¶ 47.) At that time, Nance was licensed to have a handgun for the purpose of target shooting only. (State Defs.’ 56.1 ¶ 46; Pis.’ Resp. 56.1 ¶46.) In his application, Nance asserted that he believed he satisfied Section 400.00(2)(f)’s “proper cause” requirement because he was a “citizen in good standing in the community,” he was “steadily employed and stable,” he was “of good moral character,” and the permit would facilitate his efforts to become involved with competitive shooting and gun safety instruction. (State Defs.’ 56.1 ¶ 48; Pis.’ Resp. 56.1 ¶ 48.) Upon reviewing Nance’s application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied.
As with Nance, in June 2010, Plaintiff Marcucci-Nance applied to amend her pistol permit from a target-shooting permit to a full-carry permit. (State Defs.’ 56.1 ¶¶ 54-55; Pis.’ Resp. 56.1 ¶¶ 54-55.) In her application, she cited the same reasons as Nance for why she believed she satisfied Section 400.00(2)(f)’s “proper cause” requirement, (State Defs.’ 56.1 ¶ 56; Pis.’ Resp. 56.1 ¶ 56), and her application was similarly addressed: after an investigation, the Department of Public Safety recommended denial, and Holdman, to whom the application materials were forwarded, denied the application on September 9, 2010, citing the same concerns as he did with respect to Nance. (State Defs.’ 56.1 ¶¶ 57-60; Pis.’ Resp. 56.1 ¶¶ 57-60.)
Finally, in July 2010, Plaintiff Detmer applied for a full-carry permit. (State Defs.’ 56.1 ¶ 41; Pis.’ Resp. 56.1 ¶41.) Like Nance and Marcucci-Nance, Detmer was at that time licensed to have a handgun for the purpose of target shooting only. (State Defs.’ 56.1 ¶ 40; Pis.’ Resp. 56.1¶ 40.) In his application, Detmer asserted that he believed he satisfied Section 400.00(2)(f)’s “proper cause” requirement because he was a federal law enforcement officer with the U.S. Coast Guard who, while on duty, regularly carried a .40-caliber pistol, and, as part of his training, had completed various courses concerning the use of his pistol. (State Defs.’ 56.1 ¶ 42; Pis.’ Resp. 56.1 ¶ 42.) The Department of Public Safety reviewed Detmer’s application, conducted its investigation, recommended denial, and subsequently forwarded the file to Defendant Lorenzo, who, acting as licensing officer, reviewed those materials and denied the application. (State Defs.’ 56.1 ¶¶ 44-45; Pis.’ Resp. 56.1 ¶¶ 44-45.) Lorenzo informed Detmer of this decision by letter dated September 27, 2010, in which he noted simply that there was “no justification” for issuing a full-carry permit. (State Defs.’ 56.1 ¶ 45; Pis.’ Resp. 56.1 ¶ 45.)
Individual Plaintiffs state that they have not re-applied for full-carry permits because they believe such acts would be futile, and that they would carry handguns in public but for their fear of arrest, prosecution, fine, and/or imprisonment. (Kachalsky Decl. ¶¶ 3-4; Nikolov Decl. ¶¶ 3-4; Nance Decl. ¶¶ 5-6; Marcucci-Nance Decl. ¶¶ 5-6; Detmer Decl. ¶¶ 6-7.)
D. Plaintiffs’ Claims
As late as 2005, the Second Circuit, in rejecting a constitutional challenge to New York’s handgun licensing scheme, held that the “Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts.” Bach,
On July 15, 2010, less than a month after the Supreme Court issued its decision in McDonald Kachalsky, Nikolov, and SAF filed the Complaint in the instant action. (Doe. 1.) On November 8, 2010, they joined Detmer, Nance, and Marcucci-Nance in filing a First Amended Complaint (“FAC”), (Doc. 18), the operative complaint for the purposes of the instant motions. In it, Plaintiffs assert claims under 42 U.S.C. § 1983 (“Section 1983”) for violations of the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. Specifically, they claim that Section 400.00(2)(f)’s “proper cause” requirement violates the Second Amendment both facially and as applied to them, and that it classifies individuals on the basis of “irrelevant, arbitrary, and speculative criteria in the exercise of a fundamental right.” (FAC ¶¶ 41, 43.) Plaintiffs seek to enjoin enforcement of Section 400.00(2)(f)’s “proper cause” requirement, as well as an order directing Defendants to issue Plaintiffs permits, declaratory relief consistent with the requested injunctive relief, costs, and fees. (Id. at 11.) Defendants filed Motions to Dismiss the First Amended Complaint, (Docs. 30, 33); Plaintiffs filed a Motion for Summary Judgment, (Doc. 39); and the State Defendants filed a Cross-Motion for Summary Judgment, (Doc. 42).
II. DISCUSSION
A. Motions to Dismiss
Defendants’ Motions to Dismiss largely concern threshold issues. As such, I consider these motions first. While Defendants briefly touch upon the question of Section 400.00(2)(f)’s constitutionality in these motions, they address that issue in far greater detail in briefing submitted in connection with the Motion and Cross-Motion for Summary Judgment. I therefore consider Defendants’ constitutional arguments in conjunction with those motions.
1. Legal Standards
Defendants bring their Motions to Dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim.
a. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule
b. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
In considering whether a complaint states a claim upon which relief can be granted, the court may “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determine whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[nj’ — ‘that the pleader is entitled to relief.’ ” Id. (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
c. Documents the Court May Consider
When deciding a motion to dismiss, the Court is entitled to consider the following:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Weiss v. Inc. Vill. of Sag Harbor,
2. Analysis
a. Standing and Ripeness
i. Standards
Article III, Section 2 of the U.S. Constitution restricts federal court jurisdiction to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2; Vt. Right to Life Comm., Inc. v. Sorrell,
first, the plaintiffs “must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Second, “there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.” Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Moreover, the “party invoking federal jurisdiction bears the burden of establishing these elements.”
Field Day, LLC v. Cnty. of Suffolk,
The ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
ii. Individual Plaintiffs
With respect to Individual Plaintiffs, Defendants’ arguments as to standing and ripeness are essentially one and the same: they argue that because Kachalsky and Nikolov failed to apply for full-carry permits post — McDonald, and because Detmer, Nance, and Marcucci-Nance’s claims precede any state court ruling interpreting New York’s “proper cause” requirement post-McDonald, their purported injuries are speculative. That is, they argue that Individual Plaintiffs’ injuries have not yet manifested themselves in post-McDonald permit denials and/or adverse court rulings. I therefore consider the ripeness arguments together with and as a part of the standing inquiry. See, e.g., Grandeau,
“As a general rule, ‘to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.’” Prayze FM v. FCC,
Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury.
Id.
The D.C. Circuit recently reaffirmed this view in Dearth v. Holder,
We agree with [plaintiff] that the Government has denied him the ability to purchase a firearm and he thereby suffers an ongoing injury. [Plaintiffs] injury is indeed like that of the plaintiff in Parker, who had standing to challenge the District of Columbia’s ban on handguns because he had been denied a registration certificate to own a handgun. As we there stated, a license or permit denial pursuant to a state or federal administrative scheme that can trench upon constitutionally protected interests gives rise to an Article III injury; the formal process of application and denial, however routine, suffices to show a cognizable injury.
Id. at 502 (citations and internal quotation marks omitted).
Defendants’ attempt to shift the focus of this inquiry to future, contingent events in an attempt to describe the purported injuries as “speculative” is unavailing. Defendants’ reliance upon Golden v. Zwickler,
Further, Individual Plaintiffs’ injuries may not be labeled as speculative, as Defendants argue, simply because they have failed to submit post-McDonald applications for full-carry permits. That state licensing officers might grant Individual Plaintiffs’ second full-carry permit applications were they to submit such applications at some point in the future does not suggest that their current injuries are speculative — at most, it suggests that the continuation of their injuries past that point
Nor were Individual Plaintiffs required to bring their post -McDonald federal constitutional challenge in state court before resorting to this Court. It is well-settled that “[w]hen federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) — as they are here — [a plaintiff is] not required [to] exhaust[ ] ... state judicial or administrative remedies.” Steffel v. Thompson,
iii. SAF
SAF asserts both organizational and representational standing. While it is true that organizations can have standing on their own behalf when they have suffered injuries, see Warth v. Seldin,
b. Abstention
Defendants argue that this Court should abstain from deciding this case under the doctrines laid down in Younger v. Harris,
i. Younger Abstention
In Younger v. Harris, the Supreme Court held that federal courts must abstain from exercising jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.
Younger abstention does not apply here because there are no ongoing state proceedings. “The Supreme Court has clearly held that a would-be plaintiff who has been subjected to a state proceeding which he seeks to challenge in federal court must first exhaust all available state appellate remedies ....” Kirschner v. Klemons,
Nor are there any ongoing state proceedings with respect to the remaining Individual Plaintiffs, as none of them commenced state court proceedings to challenge the denial of their full carry permit applications. See Coastal Distribution, LLC v. Town of Babylon,
ii. Pullman Abstention
Pullman abstention applies when “difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Haw. Hous. Auth. v. Midkiff
[t]hree basic conditions must be present to trigger Pullman abstention: “First, the state statute must be unclear or the issue of state law uncertain; second, resolution of the federal issue must depend upon the interpretation given to the ambiguous state provision; and third, the state law must be susceptible of an interpretation that would avoid or modify the federal constitutional issue.”
Williams v. Lambert,
As noted above, courts in New York have consistently interpreted Section 400.00(2)(f)’s “proper cause” requirement to mean “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” See, e.g., Bando,
iii. Burford Abstention
The Burford abstention doctrine serves to “protect[] complex state administrative processes from undue federal interference.” New Orleans Pub. Serv., Inc. v. Council of New Orleans,
(1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.
Id. at 361,
Burford abstention does not apply here because Plaintiffs’ claims do not present an “ambiguous state law issue,” and do not seek to “involve federal courts in supervising, interrupting, or meddling in state policies by interfering in state regulatory matters”; instead, the claims present “a direct challenge to the constitutionality of a state statute, a controversy federal courts are particularly suited to adjudicate.” Alliance of Am. Insurers v. Cuomo,
Maryland appellate courts have repeatedly examined and interpreted the statute at issue in this case, and there is no reason to believe this case will present a new question of state law.... In addition, where, as here, a plaintiff “launches a facial attack on [a] state statute [ ] as a whole” abstention on the second ground is not appropriate because the potential relief — an injunction barring the enforcement of the statute— “could not possibly threaten [the statute’s] uniform application.”
Id. at *5 n. 6 (quoting Martin v. Stewart,
c. Res Judicata
Defendants argue that Kachalsky’s Article 78 proceeding and the State Defendants’ rejection of Individual Plaintiffs permit applications have claim preclusive effect on the Section 1983 claims currently before this Court. A federal court assessing the effect of a state court judgment looks to the law of the state in which the judgment was entered, Marrese v. Am. Acad. of Orthopedic Surgeons,
a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. ... Additionally, ... once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.
In re Hunter, 4 N.Y.3d 260, 269,
I find that Kachalsky’s Article 78 proceeding does not bar him from bringing the instant as-applied and facial challenges to Section 400.00(2)(f). Whether a claim that was not raised in the previous action could have been raised therein “depends in part on ... ‘whether the facts essential to support the second were present in the first.’ ” Marvel Characters, Inc. v. Simon,
Nor are the claims brought by Nikolov, Detmer, Nance, and Marcucci-Nance precluded because their applications for full-carry permits were denied. Res judicata applies to “give conclusive effect to the quasi-judicial determinations of administrative agencies, when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law.” Ryan v. N.Y. Tel. Co.,
d. Rooker-Feldman Doctrine
Finally, Defendants argue that Kachalsky’s claims are barred by the Rooker-Feldman doctrine. Rooker-Feldman is a limited doctrine aimed at “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review of those judgments.”
Rooker-Feldmcm directs federal courts to abstain from considering claims when four requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district court review of that judgment, and (4) the state court judgment was entered before the plaintiffs federal suit commenced.
Id. At a minimum, Defendants’ argument fails because Kachalsky does not complain that he was injured by the state court judgment — ie., by the decision rendered in the Article 78 proceeding — but rather that he was injured by Section 400.00(2)(f) and by Cacace’s interpretation of the statute and application of it to Kachalsky in denying his application for a full-carry permit. See Skinner v. Switzer, — U.S. —,
e. County as a Proper Party
In its Motion to Dismiss, the County puts forth the separate argument that it is not a proper party to this lawsuit because it does not effectuate the grant or denial of full-carry permits and plays a limited role in the permitting process under applicable state law. The County notes that, although county law enforcement conducts the investigations that grow out of full-carry permit applications, the state’s licensing officers (here, the State Defendants) make independent and ultimate determinations regarding such applications. As such, they argue, Plaintiffs have failed to allege that they were denied any constitutional right by the County, as required by Section 1983. See Dove v. Fordham Univ.,
In light of the disposition below, I need not decide whether the County is a proper party and assume for the sake of argument that it is. I now turn to the question of the as-applied and facial constitutionality of Section 400.00(2)(f), which I address in the context of Plaintiffs’ Motion for Summary Judgment and State Defendants’ Cross-Motion for Summary Judgment.
B. Motion and Cross-Motion for Summary Judgment
1. Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.CivJP. 56(a). “[T]he dispute
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ____” Fed.R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, they “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc.,
2. Second Amendment Claim
Plaintiffs claim that Section 400.00(2)(f) violates the Second Amendment, which reads, “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. An evaluation of Plaintiffs’ claim must necessarily start with a discussion of the Second Amendment right as recognized in Heller.
a. Heller and the Scope of the Second Amendment
As noted above, Heller resolved the long-standing question as to whether the Second Amendment guarantees an individual right to keep and bear arms or merely a collective right to do so in connection with service in a militia, holding that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”
As so many courts considering statutory challenges post-Heller have observed, the Heller Court, while not setting the outer bounds of the Second Amendment, explicitly stated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626,
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27,
What very clearly did not fall within the ambit of presumptively lawful gun regulations were the District of Columbia’s statutes banning the possession of handguns in the home and requiring that other lawful firearms be inoperable. The Court observed that “[t]he Constitution leaves the District of Columbia a variety of tools for combating [the] problem [of handgun violence], including some measures regulating handguns,” “[b]ut the enshrinement of constitutional rights necessarily takes certain policy choices off the table____including] the absolute prohibition of handguns held and used for self-defense in the home.” Id. at 636,
This emphasis on the Second Amendment’s protection of the right to keep and bear arms for the purpose of “self-defense in the home” permeates the Court’s decision and forms the basis for its holding— which, despite the Court’s broad analysis of the Second Amendment’s text and historical underpinnings, is actually quite narrow. For example, in considering the stat
b. Relationship Between Section 400.00(2)(f) and the Second Amendment Right Recognized in Heller
The scope of the right guaranteed by the Second Amendment was not the only matter the Court left undefined in Heller; it also declined to articulate the level of scrutiny that applies to claims, such as Plaintiffs’, challenging the constitutionality of statutes under the Second Amendment. Instead, the Court found that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,” the District’s regulations “would fail constitutional muster.” Id. at 628-29,
Unsurprisingly, the parties in this case advocate for the application of different
Given the lack of a clear directive from the Supreme Court, lower courts have devised a range of approaches to constitutional challenges under the Second Amendment post-Heller. See Heller v. District of Columbia (“Heller II ”),
As we read Heller, it suggests a two-pronged approach to Second Amendment challenges. First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.
United States v. Marzzarella,
As explained above, the language of Heller makes clear that the Court recognized “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,”
Various other courts have seized upon this language in Heller in concluding that concealed weapons bans and regulations are constitutional under the Second Amendment. See, e.g., United States v. Hart,
Plaintiffs’ attempts to cast Heller as creating a broader Second Amendment right implicating Section 400.00(2)(f) are unavailing. Plaintiffs cite first to the Court’s textual analysis of the phrase “keep and bear arms,” (Pls.’ Mem. at 8), wherein the Court stated that the phrase should be read as meaning “‘wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person,”’ Heller,
Plaintiffs also point to various nineteenth-century state court cases that they claim demonstrate that state concealed carry bans are constitutional only where the state provides for unconcealed, or open, carry as well. (Pls.’ Mem. at 10-11.) Those cases’ holdings, however, seem not to be premised on the existence of open carry provisions specifically, but rather on the existence of provisions for some other means of carry generally; in other words, they suggest that such statutes would fail to pass muster only if functioning as complete bans to carrying weapons outside the home under any circumstances. See, e.g., State v. Reid,
Moreover, other state court cases decided around that same time suggest that bans on carrying guns in both a concealed and open manner are constitutional. See, e.g., Fife v. State,
Finally, Plaintiffs argue that Heller’s discussion of the lawful use of arms for hunting demonstrates that the Court’s holding is not limited to possession in the home. (Pis.’ Mem. at 12.) This argument too is unavailing, as hunting does not involve handguns and therefore falls outside the ambit of the challenged statute. In any event, the NYPL provides for licenses
Unlike in this case, the bulk of cases that have applied the two-pronged approach to Second Amendment challenges have found, under the first prong, that the challenged law at issue imposed a burden on conduct falling within the amendment’s scope because the restrictions in the challenged statute substantially overlapped with the core Second Amendment right articulated in Heller — namely the right to use arms for the purpose of self-defense in the home. The clearest, and most frequent, examples are challenges to various sections of the federal Gun Control Act that ban all gun possession by certain categories of individuals (e.g., felons, domestic violence misdemeanants) irrespective of the location of or purpose for such possession. See, e.g., United States v. Booker,
To the extent that Plaintiffs are attacking New York’s statutory scheme as precluding open carry — and it is by no means clear that they are, given their concessions that each applied “to carry concealed handguns,” (Pis.’ Resp. 56.1 ¶¶25, 35, 41, 47, 55), their focus on Section 400.00(2)(f) in particular, (see, e.g., FAC ¶¶ 22, 41), and their seeming rejection of open carry as a reasonable alternative to concealed carry, (Pis.’ Reply Mem. at 14)
Although it is admittedly a closer question, given the existence of some nineteenth-century state court cases upholding the right to carry openly, see, e.g., Chandler,
Similarly, the court in People v. Dawson considered a challenge to Illinois’s aggravated unlawful use of a weapon statute, which made it illegal for any person to carry “on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, ... or other firearm.”
In any event, even if the Second Amendment can plausibly be read to protect a right infringed upon or regulated by Section 400.00(2)(f), the statute passes constitutional muster for the reasons explained below.
c. Section 400.00(2)(f) Passes Constitutional Muster
As noted above, Heller left open the question of which form of means-ends scrutiny applies to evaluate statutes regulating conduct protected by the Second Amendment, ruling out only rational basis review and an “interest-balancing approach.” Following closely on Heller’s heels, some lower courts adopted a uniform level of scrutiny applicable to all Second Amendment challenges. See, e.g., Heller II,
Whether or not strict scrutiny may apply to particular Second Amendment challenges, it is not the case that it must be applied to all Second Amendment challenges. Strict scrutiny does not apply automatically any time an enumerated right is involved. We do not treat First Amendment challenges that way. Strict scrutiny is triggered by content-based restrictions on speech in a public forum, but content-neutral time, place, and manner restrictions in a public forum trigger a form of intermediate scrutiny. Regulations on nonmisleading commercial speech trigger another form of intermediate scrutiny,[31 ] whereas disclosure requirements for commercial speech trigger a rational basis test. In sum, the right to free speech, an undeniably enumerated fundamental right, is susceptible to several standards of scrutiny, depending upon the type of law challenged and the type of speech at issue. We see no reason why the Second Amendment would be any different.
Marzzarella,
I therefore join the multitude of other cases applying intermediate scrutiny under this approach. See, e.g., Booker,
As noted above intermediate scrutiny requires that the law be substantially related to an important governmental interest. To satisfy this standard, Defendants need to show a “reasonable” “fit between the legislature’s ends and the means chosen to accomplish those ends.” Bd. of Trustees of State Univ. of N.Y. v. Fox,
More than a quarter of a million serious crimes are committed with weapons annually in the United States, and the number is on the increase.
The legislative problem posed for the fifty-one American jurisdictions (fifty states and the District of Columbia), charged with the major responsibility of criminal law enforcement in the United States, suggests itself: to enact statutes adapted to prevent these crimes and occurrences before they happen, and, at the same time, preserve the legitimate interests of individual liberty, training for national defense, hunting, target shooting and trophy collecting.
Report of the N.Y. State Joint Legislative Comm, on Firearms & Ammunition, Doc. No. 29, at 11-12 (1962) (Tomari Decl. Ex. S(9)). In a 1965 supplement to that report, the committee added,
The primary value to law enforcement of adequate statutes dealing with dangerous weapons is prevention of crimes of violence before their consummation.
... In the absence of adequate weapons legislation, under the traditional law of criminal attempt, lawful action by the police .must await the last act necessary to consummate the crime .... Adequate statutes governing firearms and weapons would make lawful intervention by police and prevention of these fatal consequences, before any could occur.
Report of the N.Y. State Joint Legislative Comm, on Firearms & Ammunition, Doc. No. 6, at 12-13 (1965) (Tomari Decl. Ex. S(13)). Finally, in 1982, during a floor debate regarding substantive changes to portions of the state handgun licensing scheme, Senator Franz Leichter, speaking regarding Section 400.00(2)(f)’s “proper cause” requirement, observed,
[W]e are not only talking about crime, which obviously is important, but we’re also talking about public safety____[I]n this instance, it’s not only protecting a person from himself but it’s protecting innocent people who get shot every day because handguns are lying around, and that is something that should be of concern to all of us.
N.Y. Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987) (Tomari Decl. Exs. S(14)). Despite proposals to change the licensing scheme, Section 400.00(2)(f)’s “proper cause” requirement has remained. (State Defs.’ 56.1 ¶ 77.)
The Supreme Court has repeatedly acknowledged that governments have an important, even compelling, interest in protecting public safety. See, e.g., United States v. Salerno,
has an important and substantial interest in public safety and in reducing the rate of gun use in crime. In particular, the government has an important interest in reducing the number of concealed weapons in public in order to reduce the risks to other members of the public who use the streets and go to public accommodations. The government also has an important interest in reducing the number of concealed handguns in public because of their disproportionate involvement in life-threatening crimes of violence, particularly in streets and other public places.
Peruta,
Notwithstanding the emphasis placed on the interest in regulating concealed carry, the same rationales apply equally, or almost equally, to the regulation of open carry. See, e.g., Osterweil,
I also hold that Section 400.00(2)(f) is substantially related to that important government interest. The statute does not function as an outright ban on concealed carry, but rather calls for individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable — rather than merely speculative, potential, or even specious — need for self-defense. As crafted, the statute seeks to limit the use of handguns to self-defensive purposes — a use which, although in this context existing outside the home, is nonetheless a hallmark of Heller — rather than for some other use that has not been recognized as falling within the protections of the Second Amendment. This purpose is furthered by the statute’s directive that full-carry permits “shall be” issued where there exists proper cause — rather than directing merely that permits “may” be issued in such instances.
The other provisions of Section 400.00(2) create alternative means by which applicants may secure permits and highlight the emphasis the statute places upon self-defense: as noted above, it compels the issuance of handgun permits to merchants and storekeepers for them to keep in their places of business — where they may be subject to robberies — as well as the issuance of full-carry permits to messengers for banking institutions and express companies, who often carry sensitive communications or valuable parcels that others may covet, to state judges and justices, who may be the targets of criminal defendants or disgruntled litigants (or their associates), and to employees at correctional facilities, for whom protection from those being housed at such facilities is necessary. Surely, the legislature cannot be expected to enumerate every profession or circumstance that might give rise to an articulable need for self-defense, and so Section 400.00(2)(f) vests the responsibility for discerning such need in the capable hands of the state’s neutral and detached licensing officers.
[requiring documentation enables Defendant to effectively differentiate between individuals who have a bona fide need to carry a concealed handgun for self-defense and individuals who do not.
The Court acknowledges Plaintiffs’ argument that many -violent gun crimes, even a majority, are committed by people who cannot legally have guns, and the ongoing dispute over the effectiveness of concealed weapons laws. But under intermediate scrutiny, Defendant’s policy need not be perfect, only reasonably related to a “significant,” “substantial,” or “important” governmental interest. Defendant’s policy satisfies that standard.
Id. (citations omitted). Plaintiffs here make the same argument as in Peruta, and the Court recognizes not only that many violent crimes are committed by those carrying handguns illegally, but also that most gun owners across the country are responsible, law-abiding citizens. The Court also recognizes the existence of contrasting studies and statistics concerning the relationship between handgun ownership and violent crime. But it is the job of the legislature, not the Court, to weigh the conflicting evidence and make policy choices (within constitutional parameters). See, e.g., Turner Broad. Sys., Inc. v. FCC,
Section 400.00(2)(f) does not burden recognized protected rights under the Second Amendment. If Section 400.00(2)(f) could be read to implicate such rights, the statute, as applied to Plaintiffs, does not violate the Second Amendment under intermediate scrutiny. Accordingly, the Court a priori rejects Plaintiffs’ facial constitutional challenge. “[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] that no set of circumstances exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange,
Finally, Plaintiffs challenge Section 400.00(2)(f) as violative of the Equal Protection Clause. The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc.,
III. CONCLUSION
For the reasons stated above, I hereby DENY the State Defendants’ and the County’s Motions to Dismiss, DENY Plaintiffs’ Motion for Summary Judgment, and GRANT the State Defendants’ Cross-Motion for Summary Judgment, Although the County has not cross-moved for summary judgment, I hereby GRANT it summary judgment sua sponte,
SO ORDERED.
Notes
. The original Complaint, filed on July 15, 2010 by Alan Kachalsky, Christina Nikolov, and Second Amendment Foundation, Inc., named only Cacace, Cohen, and the County of Westchester as defendants. (Doc. 1.) Cacace and Cohen served a motion to dismiss on November 9, 2010, (Docs. 30-32), and, after the remaining parties were added pursuant in the First Amended Complaint ("FAC”), (Doc. 18), joined Lorenzo and Holdman in submitting supplemental materials moving to dismiss the First Amended Complaint, (Docs. 17, 34-35). The Court therefore treats the State Defendants’ motion as a motion to dismiss the First Amended Complaint.
. The licensing exemption under Section 400.00 does not, however, preclude a conviction for knowing possession of a handgun on school grounds, in a school building, or on a school bus. N.Y. Penal Law §§ 265.20(3), 265.01(3). Other exemptions under Section 265.20 include possession by military and law enforcement officers, as well as conditional possession of various firearms for hunting purposes and at shooting ranges. See, e.g., id. § 265.20(l)(a)-(d), (4), (7).
."State Defs.’ 56.1” refers to State Defendants' Statement of Undisputed Material Facts in Support of State Defendants’ Motion for Summary Judgment. (Doc. 44, at 16-36.) "Pis.’ Resp. 56.1” refers to Plaintiffs' Separate Statement of Disputed Material Facts in Opposition to Individual Defendants’ Motion for Summary Judgment. (Doc.47-1.)
. "Pis.’ MSJ” refers to Plaintiffs’ Notice of Motion for Summary Judgment. (Doc. 39.)
. Except for New York City and Suffolk County, a "licensing officer” is defined as a "judge or justice of a court of record having his office in the county of issuance.” N.Y. Penal Law § 265.00(10).
. "Pis.' 56.1” refers to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment. (Doc. 41.) The State Defendants state that they lack information sufficient to admit or deny these facts, as Plaintiffs moved for summary judgment prior to discovery. (State Defendants' Response to Plaintiffs’ Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment ("State Defs.’ Resp. 56.1”) (Doc. 44, at 1-15), ¶¶ 25-26.)
. Cacace serves as a Judge on the County Court in Westchester County. (State Defs.’ 56.1 ¶ 7; Pis.’ Resp. 56.1 ¶ 7.) Cohen currently serves as a Justice on the New York State Supreme Court, Appellate Division, Second Department, and, at the time of the relevant licensing decision described herein, served as a Judge on the County Court in Westchester County. (State Defs.’ 56.1 ¶ 8; Pis.’ Resp. 56.1 ¶ 8.) Lorenzo serves as an Acting Justice for the New York State Supreme Court, Westchester County. (State Defs.’ 56.1 ¶ 9; Pis.’ Resp. 56.1 ¶ 9.) Holdman currently serves as Justice for the New York State Supreme Court, Bronx County, and, at the time of the relevant licensing decision described herein, served as Justice for the New York State Supreme Court, Westchester County. (State Defs.’ 56.1 ¶ 10; Pis.' Resp. 56.1 ¶ 10.)
. "Tomari Decl." refers to the Declaration of Anthony J. Tomari, submitted in support of State Defendants’ Cross-Motion for Summary Judgment. (Docs. 49, 51, 65, 66.)
. "Kachalsky Decl.” refers to the Declaration of Alan Kachalsky. (Doc. 39-9.) "Nikolov Decl.” refers to the Declaration of Christina Nikolov. (Doc. 39-12.) “Nance Decl.” refers to the Declaration of Johnnie Nance. (Doc. 39-13.) "Marcucci-Nance Decl.” refers to the Declaration of Anna Marcucci-Nance. (Doc. 39-10.) "Detmer Decl." refers to the Declaration of Eric Detmer. (Doc. 39-11.)
. Heller is discussed in greater detail below; it is mentioned here only to place Plaintiffs' claims in jurisprudential context.
. Dearth reversed Hodgkins v. Holder — on which Defendants rely in their papers — in which the district court held that "past refusals of merchants to sell firearms to [plaintiffs] are not enough, without more, to provide the basis for a[] [declaratory judgment] action.”
. For purposes of the standing inquiry, the Court assumes the validity of Individual Plaintiffs’ claims that their rights have been violated. See Lujan,
. "Rotini Decl.” refers to the Declaration of Melissa-Jean Rotini in Support of Motion to Dismiss Amended Complaint. (Doc. 33-i.) I may consider the decisions issued with respect to Nance and Marcucci-Nance, as they are quoted in the First Amended Complaint. See McCarthy v. Dun & Bradstreet Corp.,
. Defendants attempt to distinguish Bach on the basis that the in-state residency/work requirement there was written into the statute, whereas here the requirement that applicants demonstrate a "need for self protection distinguishable from that of the general public” does not appear in the statute and is instead derived from state courts’ interpretation of the phrase "proper cause,” (Reply Memorandum of Law in Further Support of the State Defendants’ Motion to Dismiss the Complaint, (Doc. 37), at 10), but the distinction is unavailing. Plaintiffs’ claims in essence target the "proper cause” requirement, not the interpretation thereof: they argue that the right to carry handguns in public is absolute and that individuals cannot be required to demonstrate proper cause to exercise that purported right — not that "proper cause” should somehow be interpreted differently. In any event, to the extent that the instant case does not comport with Bach, the standing analysis remains unaffected, as, unlike Bach, the Individual Plaintiffs here actually submitted applications under the relevant handgun statute.
. The Court may consider the permit applications in deciding the Motions to Dismiss, as the applications are discussed in the First Amendment Complaint, (FAC ¶¶ 30, 32, 34, 36), and incorporated by reference therein. See, e.g., Webster v. Wells Fargo Bank, N.A., No. 08-10145,
. The Court reiterated this point in McDonald:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill,” "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.
. It has since repeated: "In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” McDonald,
. To pass rational-basis review, a law must be rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr.,
.Justice Breyer’s test would have courts ask " 'whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ ” Heller,
.To pass intermediate scrutiny, a law must be substantially related to an important governmental interest. Clark v. Jeter,
. To pass strict scrutiny, a law must be narrowly tailored to serve a compelling governmental interest. Abrams v. Johnson,
. "Pis.’ Mem." refers to the Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment. (Doc. 40.)
. Hetler cited to Robertson, but only for the proposition that "the Second Amendment was not intended to lay down a ‘novel principle]' but rather codified a right 'inherited from our English ancestors.’"
. See also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.Rev. 1443, 1523-24 (2009) (“For over 150 years, the right to bear arms has generally been seen as limited in its scope to exclude concealed carry. Constitutional provisions enacted after this consensus emerged were likely enacted in reliance on that understanding. If Heller is correct to read the Second Amendment in light of post-enactment tradition and not just Founding-era original meaning, this exclusion of concealed carry would be part of the Second Amendment’s scope as well.”) (citations omitted).
. But see State v. Chandler,
. See also John Norton Pomeroy, An Introduction to the Constitutional Law of the United States 152-53 (1868) ("The right of the people to keep and bear arms____is certainly not violated by laws forbidding persons to carry dangerous or concealed weapons ....”) (source cited in Heller,
. See also Ezell v. City of Chicago,
. "Pis.' Reply Mem.” refers to the Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment and in Reply to Defendants' Opposition to Plaintiffs’ Summary Judgment Motion. (Doc. 47.) Also instructive is Kachalsky’s Article 78 petition in the state court, in which he exclusively contested his inability to carry a concealed weapon, and made no mention whatsoever of open carry. (See Tomari Deck Ex. L ¶¶ 8, 14.)
. Engstrum reasoned that strict scrutiny was warranted for the following two reasons:
First, the Heller Court described the right to keep and bear arms as a fundamental right that the Second Amendment was intended to protect. The Tenth Circuit has declared that, where fundamental rights are at stake, strict scrutiny is to be applied. Second, the Heller Court categorized Second Amendment rights with other fundamental rights which are analyzed under strict scrutiny.
. But see Nordyke v. King,
. Such regulations must directly advance a substantial governmental interest and not be more burdensome than necessary to serve that interest. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n,
. Plaintiffs argue that because courts have looked to First Amendment jurisprudence as a guide in developing a standard of analysis for Second Amendment claims, the Court should import the First Amendment principle of pri- or restraint and apply it to strike down Section 400.00(2)(f), as the statute accords licensing officers "unbridled discretion” in granting full-carry permits. (Pis.’ Mem. at 13-18.) I decline to do so. While these cases borrow an analytical framework, they do not apply substantive First Amendment rules in the Second Amendment context, and while state licensing officers do have discretion in deciding whether to grant full-carry permits, their discretion is not "unbridled,” but is instead constrained by the well-established judicial construction of the term "proper cause”— which Plaintiffs themselves admit is a “strict policy,” (FAC ¶ 25) — as well as "arbitrary and capricious" review.
Further to their "unbridled discretion” argument, Plaintiffs argue that licensing officers enforce Section 400.00(2)(f)’s "proper cause” requirement together with Section 400.00(l)(b)’s "good moral character” eligibility requirement. (Pis.’ Mem. at 18-19; Pis.’ Reply Mem. at 9.) The State Defendants’ decisions denying Plaintiffs’ applications, however, suggest the opposite, as they do not discuss or even refer to the "good moral character” requirement. (See Rotini Deck Exs. A-E.) To the extent that Plaintiffs raise an independent objection to the "good moral character” requirement, I decline to consider that argument herein. Plaintiffs do not object to that requirement in their pleadings, and their claims target Section 400.00(2)(f) exclusively. (FAC ¶¶ 22, 41, 43.) See, e.g., Chapman v. City of N.Y., No. 06-3153,
. Peruta, which the Court finds persuasive, was decided before the Ninth Circuit adopted a "substantive burden framework” for Second Amendment claims in Nordyke v. King.
. Plaintiffs question the relevance of the legislative history, (Pis.’ Reps. 56.1 ¶¶ 63-77), but courts have cited to such history to demonstrate the important government interest implicated by a challenged statute, see, e.g., Heller II, 698 F.Supp.2d. at 190.
. The court in Yarbrough also observed that "carrying a firearm concealed on the person or in a vehicle in violation of [California state law] is not in the nature of a common use of a gun for lawful purposes which the court declared to be protected by the Second Amendment in Heller."
. In an effort to further demonstrate the state’s interest in regulating handguns to promote public safety and prevent crime, the State Defendants have provided the Court various witness affidavits. Based on those affidavits, the State Defendants conclude that ”[t]he likelihood that a gun will be used in crime is closely linked to the general availability of guns, and especially handguns,” ‘‘[a]llowing more individuals to carry concealed handguns will endanger officers stopping individuals on the street or making car stops, and complicate interactions between uniformed officers and those working in plain clothes or off-duty,” ”[i]ncreasing the prevalence of concealed handguns will undermine” officers’ "ability to stop and frisk individuals who appear to be carrying handguns in public,” and "[t]he majority of criminal homicides and other serious crimes are committed by individuals who have not been convicted of a felony and would receive permits to carry concealed weapons without the ‘proper cause' requirement.” (State Defs.' 56.1 ¶¶ 87-88, 90-91.) Plaintiffs dispute these facts, (Pis.’ Resp. 56.1 ¶¶ 87-88, 90-91), and, therefore, I do not rely on them in deciding the instant motions.
. To the extent that Plaintiffs' facial claim is framed as an ‘‘overbreadth” challenge, it must fail on that ground as well:
Without entertaining the novel notion that an overbreadth challenge could be recognized outside the limited context of the First Amendment, [the Court] conclude[s] that a person ... to whom a statute was constitutionally applied, will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations notbefore the Court. This conclusion reflects] the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws.
Masciandaro,
. As the Second Circuit recently stated,
[Djistrict courts have the discretion to grant summary judgment sua sponte, even without notice in certain circumstances. In granting summary judgment sua sponte, however, a district court must determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried .... [T]he district court must assure itself that following the procedures set out in Rule 56 would not alter the outcome. Discovery must either have been completed, or it must be clear that further discovery would be of no benefit. The record must, therefore, reflect the losing party’s inability to enhance the evidence supporting its position and the winning party’s entitlement to judgment.
Priestley v. Headminder, Inc., No. 09-4931,