KATZMANN, WESLEY, LYNCH, Circuit Judges .
Plaintiffs-Appellants appeal from a September 2, 2011 Opinion and Order of the United States District Court for the Southern District of New York (Seibel, J. ), granting Defendants-Appellees summary judgment. Plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983, barring New York State handgun licensing officials from requiring that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense pursuant to New York Penal Law section 400.00(2)(f). They argue that application of section 400.00(2)(f) violates the Second and Fourteenth Amendments to the Constitution. Because the proper cause requirement is substantially related to New York’s compelling interests in public safety and crime prevention, we affirm.
AFFIRMED.
ALAN GURA, Gura & Possessky, PLLC, Alexandria, VA, for Plaintiffs-Appellants-Cross-Appellees . THOMAS G. GARDINER, Sr. Assistant County Attorney (James Castro-Blanco, Chief Deputy County Attorney, on the brief ), for Robert F. Meehan, County Attorney for the County of Westchester, Westchester, NY, for Defendant-Appellee- Cross-Appellant.
SIMON HELLER, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees .
WESLEY, Circuit Judge :
This appeal presents a single issue: Does New York’s handgun licensing scheme violate the Second Amendment by requiring an applicant to demonstrate “proper cause” to obtain a license to carry a concealed handgun in public?
Plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie
Nance, Anna Marcucci-Nance, and Eric Detmer (together, the
“Plaintiffs”) all seek to carry handguns outside the home
for self-defense. Each applied for and was denied a full-
carry concealed-handgun license by one of the defendant
licensing officers (the “State Defendants”
[1]
) for failing to
establish “proper cause”—a special need for self-
protection—pursuant to New York Penal Law section
400.00(2)(f). Plaintiffs, along with the Second Amendment
Foundation (“SAF”), thereafter filed this action to contest
New York’s proper cause requirement. They contend that the
proper cause provision, on its face or as applied to them,
violates the Second Amendment as interpreted by the Supreme
Court in
District of Columbia v. Heller
,
*4 The State Defendants moved for summary judgment. The district court granted that motion and granted Defendant County of Westchester summary judgment sua sponte .
Kachalsky v. Cacace
,
I
A New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had *5 enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder. See, e.g. , Act of Apr. 22, 1785, ch. 81, 1785 Laws of N.Y. 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627. Like most other states, during the nineteenth century, New York heavily regulated the carrying of concealable firearms. In 1881, New York prohibited the concealed carrying of “any kind of fire-arms.” 1881 Laws of N.Y., ch. 676, at 412. In 1884, 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, it expanded its licensing requirements to include all persons carrying concealable pistols, see 1905 Laws of N.Y., ch. 92, § 2, at 129–30.
Due to a rise in violent crime associated with concealable firearms in the early twentieth century, New York enacted the Sullivan Law in 1911, which made it unlawful for any person to possess, without a license, “any pistol, revolver or other firearm of a size which may be concealed upon the person.” See 1911 Laws of N.Y., ch. 195, § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3); see also N.Y. Legislative Service, Dangerous Weapons—“Sullivan Bill,” *6 1911 Ch. 195 (1911). A study of homicides and suicides completed shortly before the law’s enactment explained: “The increase of homicide by shooting indicates . . . the urgent necessity of the proper authorities taking some measures for the regulation of the indiscriminate sale and carrying of firearms.” Revolver Killings Fast Increasing , N.Y. Times, Jan. 30, 1911 (quoting N.Y. State Coroner’s Office Report). As a result, the study recommended that New York
should have a law, whereby a person having a revolver in his possession, either concealed or displayed, unless for some legitimate purpose, could be punished by a severe jail sentence. . . . [A] rigid law, making it difficult to buy revolvers, would be the means of saving hundreds of lives.
Id. (quoting N.Y. State Coroner’s Office Report).
The Sullivan Law survived constitutional attack shortly
after it was passed.
People ex rel. Darling v. Warden of
City Prisons
,
There had been for many years upon the statute books a law against the carriage of concealed weapons. . . . It did not seem effective in preventing crimes of violence in this State. Of the same kind and character, but *7 proceeding a step further with the regulatory legislation, the Legislature has now picked out one particular kind of arm, the handy, the usual and the favorite weapon of the turbulent criminal class , and has said that in our organized communities, our cities, towns and villages where the public peace is protected by the officers of organized government, the citizen may not have that particular kind of weapon without a permit, as it had already said that he might not carry it on his person without a permit.
Id. at 423 (emphasis added).
In 1913, the Sullivan Law was amended to impose a statewide standard for the issuance of licenses to carry firearms in public. 1913 Laws of N.Y., ch. 608, at 1627-30. To obtain a license to carry a concealed pistol or revolver the applicant was required to demonstrate “good moral character, and that proper cause exists for the issuance [of the license].” Id. at 1629. One hundred years later, the proper cause requirement remains a feature of New York’s statutory regime.
B
New York maintains a general prohibition on the possession of “firearms” absent a license. See N.Y. Penal Law §§ 265.01-265.04 , 265.20(a)(3). A “firearm” is defined to include pistols and revolvers; shotguns with barrels less than eighteen inches in length; rifles with barrels less than sixteen inches in length; “any weapon made from a *8 shotgun or rifle” with an overall length of less than twenty-six inches; and assault weapons. N.Y. Penal Law § 265.00(3). Rifles and shotguns are not subject to the licensing provisions of the statute. [3]
Section 400.00 of the Penal Law “is the exclusive
statutory mechanism for the licensing of firearms in New
York State.”
[4]
O’Connor v. Scarpino
,
Most licenses are limited by place or profession. Licenses “shall be issued” to possess a registered handgun *9 in the home or in a place of business by a merchant or storekeeper. N.Y. Penal Law § 400.00(2)(a)-(b). And licenses “shall be issued” for a messenger employed by a banking institution or express company to carry a concealed handgun, as well as for certain state and city judges and those employed by a prison or jail. § 400.00(2)(c)-(e).
This case targets the license available under section 400.00(2)(f). That section provides that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.” N.Y. Penal Law § 400.00(2)(f). This is the only license available to carry a concealed handgun “without regard to employment or place of possession.” Id. Given that New York bans carrying handguns openly, applicants—like Plaintiffs in this case—who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f).
“Proper cause” is not defined by the Penal Law, but New
York State courts have defined the term to include carrying
a handgun for target practice, hunting, or self-defense.
When an applicant demonstrates proper cause to carry a
*10
handgun for target practice or hunting, the licensing
officer may restrict a carry license “to the purposes that
justified the issuance.”
[5]
O’Connor
,
To establish proper cause to obtain a license without
any restrictions—the full-carry license that Plaintiffs seek
in this case—an applicant must “demonstrate a special need
for self-protection distinguishable from that of the general
community or of persons engaged in the same profession.”
Klenosky v. N.Y City Police Dep’t
,
The application process for a license is “rigorous” and
administered locally.
Bach v. Pataki
,
Licensing officers, often local judges,
[6]
are “vested
with considerable discretion” in deciding whether to grant a
license application, particularly in determining whether
proper cause exists for the issuance of a carry license.
Vale v. Eidens
,
C
Each individual Plaintiff applied for a full-carry license under section 400.00(2)(f). Four of the five Plaintiffs made no effort to comply with New York’s requirements for a full-carry license, that is, they did not claim a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession. Plaintiff Kachalsky asserted that the Second Amendment “entitles him to an unrestricted permit without further establishing ‘proper cause.’” J.A. 33. He noted: “[W]e live in a world where sporadic random violence might at any moment place one in a position where one needs to defend onself or possibly others.” J.A. 33-34.
Plaintiffs Nance and Marcucci-Nance asserted that they demonstrated proper cause because they were citizens in “good standing” in their community and gainfully employed. J.A. 43-44, 48-49. Plaintiff Detmer asserted that he demonstrated proper cause because he was a federal law enforcement officer with the U.S. Coast Guard. [7] J.A. 39. Unlike the other Plaintiffs, Plaintiff Nikolov attempted to *14 show a special need for self-protection by asserting that as a transgender female, she is more likely to be the victim of violence. J.A. 36. Like the other applicants, she also asserted that being a law-abiding citizen in itself entitled her to a full-carry license. Id.
Plaintiffs’ applications were all denied for the same reason: Failure to show any facts demonstrating a need for self-protection distinguishable from that of the general public. J.A. 34 (Kachalsky), 37 (Nikolov), 39 (Detmer), 43-44 (Nance), 48-49 (Marcucci-Nance). Nikolov’s contention that her status as a transgender female puts her at risk of violence was rejected because she did not “report . . . any type of threat to her own safety anywhere.” J.A. 36. Plaintiffs aver that they have not reapplied for full-carry licenses because they believe it would be futile, and that they would carry handguns in public but for fear of arrest, prosecution, fine, and/or imprisonment. [8] J.A. 75, 77, 79, 81, 83, 85.
II
Invoking Heller , Plaintiffs contend that the Second Amendment guarantees them a right to possess and carry weapons in public to defend themselves from dangerous confrontation and that New York cannot constitutionally force them to demonstrate proper cause to exercise that right. Defendants counter that the proper cause requirement does not burden conduct protected by the Second Amendment. They share the district court’s view that the Supreme Court’s pronouncement in Heller limits the right to bear arms for self-defense to the home.
Heller provides no categorical answer to this case. And in many ways, it raises more questions than it answers. In Heller , the Supreme Court concluded that the Second Amendment codifies a pre-existing “individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Given that interpretation, the Court struck down the District of Columbia’s prohibition on the possession of usable firearms in the home because the law banned “the quintessential self-defense weapon” in the place Americans hold most dear—the home. Id. at 628-29.
There was no need in to further define the scope of the Second Amendment or the standard of review for laws *16 that burden Second Amendment rights. As the Court saw it, “[f]ew laws in the history of our Nation have come close to the severe restriction of the District's handgun ban.” Id. at 629. Because the Second Amendment was directly at odds with a complete ban on handguns in the home, the D.C.
statute ran roughshod over that right. Thus, the Court simply noted that the handgun ban would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628. was never meant “to clarify the entire field” of Second Amendment jurisprudence. [9] Id. at 635.
*17
Two years after
Heller
, the Supreme Court held that the
Second Amendment’s protections, whatever their limits, apply
fully to the states through the Fourteenth Amendment.
McDonald v. City of Chicago
,
What we know from these decisions is that Second
Amendment guarantees are at their zenith within the home.
,
A
Plaintiffs contend that, as in , history and tradition demonstrate that there is a “fundamental right” to carry handguns in public, and though a state may regulate open or concealed carrying of handguns, it cannot ban both . While Plaintiffs concede that state legislative efforts have long recognized the dangers presented by both the open and concealed carrying of handguns in public places, they contend that states must suffer a constitutionally imposed choice between two equally inadequate alternatives. Thus, according to Plaintiffs, “access to [New York’s] only available handgun carry license can[not] be qualified by *19 ‘proper cause.’” Appellants’ Br. at 38.
To be sure, some nineteenth-century state courts
offered interpretations of the Second Amendment and
analogous state constitutional provisions that are similar
to Plaintiffs’ position. In
State v. Reid
, the Supreme
Court of Alabama upheld a prohibition on the concealed
carrying of “any species of fire arms” but cautioned that
the state’s ability to regulate firearms was not unlimited
and could not “amount[] to a destruction of the right, or .
. . require[] arms to be so borne as to render them wholly
Plaintiffs’ argument is premised, in part, on
Heller’s
enunciation of certain “longstanding” regulatory measures,
including concealed carry bans, that the Court deemed
“presumptively lawful.”
Heller
,
Moreover, even if this language provided a “test” for
determining the validity of a handgun regulation, it is not
self-evident what that test might be. The “longstanding”
prohibitions on the possession of firearms by felons and the
mentally ill were identified as “presumptively lawful,” ,
useless for the purpose of defence.”
*21
But this was hardly a universal view. Other states
read restrictions on the public carrying of weapons as
entirely consistent with constitutional protections of the
right to keep and bear arms. At least four states once
banned the carrying of pistols and similar weapons in
public, both in a concealed or an open manner.
See, e.g.
,
Ch. 96, §§ 1-2,
*22
It seems apparent to us that unlike the situation in
Heller
where “[f]ew laws in the history of our Nation have
come close” to D.C.’s total ban on usable handguns in the
home, New York’s restriction on firearm possession in public
has a number of close and longstanding cousins.
[15]
,
Even if we believed that we should look solely to this highly ambiguous history and tradition to determine the meaning of the Amendment, we would find that the cited sources do not directly address the specific question before us: Can New York limit handgun licenses to those demonstrating a special need for self-protection? Unlike *23 the cases and statutes discussed above, New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public. Analogizing New York’s licensing scheme (or any other gun regulation for that matter) to the array of statutes enacted or construed over one hundred years ago has its limits.
Plaintiffs raise a second argument with regard to how
we should measure the constitutional legitimacy of the New
York statute that takes a decidedly different tack. They
suggest that we apply First Amendment prior-restraint
analysis in lieu of means-end scrutiny to assess the proper
cause requirement.
[16]
They see the nature of the rights
guaranteed by each amendment as identical in kind. One has
a right to speak and a right to bear arms. Thus, just as
the First Amendment permits everyone to speak without
obtaining a license, New York cannot limit the right to bear
arms to only some law-abiding citizens. We are hesitant to
import
substantive
First Amendment principles wholesale into
Second Amendment jurisprudence. Indeed, no court has done
*24
so.
See, e.g.
,
Woollard v. Sheridan
,
We recognize that analogies between the First and
Second Amendment were made often in .
But even if we decided to apply prior-restraint
doctrine to Second Amendment claims, this case would be a
poor vehicle for its maiden voyage. To make out a
prior-restraint argument, Plaintiffs would have to show that
the proper cause requirement lacks “narrow, objective, and
definite standards,” thereby granting officials unbridled
discretion in making licensing determinations.
Forsyth
Cnty. v. Nationalist Movement
,
Plaintiffs’ complaint is not that the proper cause requirement is standardless ; rather, they simply do not like the standard —that licenses are limited to those with a special need for self-protection. This is not an argument that licensing officials have unbridled discretion in granting full-carry permits. In fact, the State Defendants’ determinations that Plaintiffs do not have a special need for self-protection are unchallenged. Rather, Plaintiffs question New York’s ability to limit handgun possession to those demonstrating a threat to their safety. This is precisely the type of argument that should be addressed by examining the purpose and impact of the law in light of the Plaintiffs’ Second Amendment right.
Plaintiffs’ attempts to equate this case with or to draw analogies to First Amendment concerns come up short.
B
Thus, given our assumption that the Second Amendment
applies to this context, the question becomes how closely to
*27
scrutinize New York’s statute to determine its
constitutional mettle.
Heller
, as noted above, expressly
avoided deciding the standard of review for a law burdening
the right to bear arms because it concluded that D.C.’s
handgun ban was unconstitutional “[u]nder any of the
standards of scrutiny [traditionally] applied to enumerated
constitutional rights.”
Heller
,
We have held that “heightened scrutiny is triggered
only by those restrictions that (like the complete
prohibition on handguns struck down in ) operate as a
substantial burden on the ability of law-abiding citizens to
possess and use a firearm for self-defense (or for other
lawful purposes).”
United States v. Decastro
,
We do not believe, however, that heightened scrutiny
must always be akin to strict scrutiny when a law burdens
the Second Amendment.
Heller
explains that the “core”
protection of the Second Amendment is the “right of law-
abiding, responsible citizens to use arms in defense of
hearth and home.”
Heller
,
The proper cause requirement falls outside the core
Second Amendment protections identified in . New
York’s licensing scheme affects the ability to carry
handguns only
in public
, while the District of Columbia ban
applied
in the home
“where the need for defense of self,
convicted of a misdemeanor crime of domestic violence),
cert.
denied
,
family, and property is most acute.” ,
Treating the home as special and subject to limited
state regulation is not unique to firearm regulation; it
permeates individual rights jurisprudence. For instance, in
Stanley v. Georgia
, the Court held that in-home possession
of obscene materials could not be criminalized, even as it
assumed that public display of obscenity was unprotected.
But while the state’s ability to regulate firearms is
circumscribed in the home, “outside the home, firearm rights
have always been more limited, because public safety
interests often outweigh individual interests in self-
defense.”
Masciandaro
,
2 In the nineteenth century, laws directly regulating 3 concealable weapons for public safety became commonplace and 4 far more expansive in scope than regulations during the 5 Founding Era. Most states enacted laws banning the carrying 6 of concealed weapons. [21] And as noted, “the majority 7 of the 19th-century courts to consider the question held 8 that prohibitions on carrying concealed weapons were lawful *34 under the Second Amendment or state analogues.” , 554 U.S. at 626. Indeed, the nineteenth century Supreme Court agreed, noting that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons.” Robertson v. Baldwin , 165 U.S. 275, 281-82 (1897).
In some ways, these concealed-carry bans were similar
to New York’s law because while a few states with concealed-
carry bans considered self-defense concerns, the exceptions
were extremely limited. For instance, in Ohio there was an
exception if “the accused was, at the time of carrying [the
concealed weapon] engaged in a pursuit of any lawful
business, calling or employment, and that the circumstances
. . . justif[ied] a prudent man in carrying the weapon . . .
for the defense of his person.” Act of Mar. 18, 1859, 1859
Ohio Laws at 56-57. Similarly, in Tennessee, a person was
exempted from the concealed carry ban who was “on a journey
to any place out of his county or state.” Act of Oct. 19,
1821, ch. XIII,
Some states went even further than prohibiting the carrying of concealed weapons. As discussed above, several states banned concealable weapons (subject to certain exceptions) altogether whether carried openly or concealed. See Part II.A. Other states banned the sale of concealable weapons. For instance, Georgia criminalized the sale of concealable weapons, effectively moving toward their complete prohibition. Act of Dec. 25, 1837, 1837 Ga. Laws at 90 (protecting citizens of Georgia against the use of deadly weapons). Tennessee enacted a similar law, which withstood constitutional challenge. Act of Jan. 27, 1838, ch. CXXXVII, 1837-1838 Tenn. Pub. Acts 200. In upholding the law, the Supreme Court of Tennessee reasoned that "[t]he Legislature thought the evil great, and, to effectually remove it, made the remedy strong.” Day v. State , 37 Tenn. (5 Sneed) 496, 500 (1857).
The historical prevalence of the regulation of firearms
in public demonstrates that while the Second Amendment’s
core concerns are strongest inside hearth and home, states
have long recognized a countervailing and competing set of
concerns with regard to handgun ownership and use in public.
Understanding the scope of the constitutional right is the
*36
first step in determining the yard stick by which we measure
the state regulation.
See, e.g.
,
Bd. Of Trustees of Univ.
of Alabama v. Garrett
,
We believe state regulation of the use of firearms in
public was “enshrined with[in] the scope” of the Second
Amendment when it was adopted. , 554. U.S. at 634.
As Plaintiffs admitted at oral argument, “the state enjoys a
fair degree of latitude” to regulate the use and possession
of firearms in public. The Second Amendment does not
foreclose regulatory measures to a degree that would result
in “handcuffing lawmakers’ ability to prevent armed mayhem
in public places.”
Masciandaro
,
Because our tradition so clearly indicates a
substantial role for state regulation of the carrying of
firearms in public, we conclude that intermediate scrutiny
is appropriate in this case. The proper cause requirement
passes constitutional muster if it is substantially related
to the achievement of an important governmental interest.
*37
See, e.g.
,
Masciandaro
,
As the parties agree, New York has substantial, indeed
compelling, governmental interests in public safety and
crime prevention.
See, e.g.
,
Schenck v. Pro–Choice Network
,
In making this determination, “substantial deference to
the predictive judgments of [the legislature]” is warranted.
Turner Broad. Sys., Inc. v. FCC
,
New York’s legislative judgment concerning handgun possession in public was made one-hundred years ago. In 1911, with the enactment of the Sullivan Law, New York identified the dangers inherent in the carrying of handguns in public. N.Y. Legislative Service, Dangerous Weapons - “Sullivan Bill,” 1911 Ch. 195 (1911). And since 1913, New York’s elected officials determined that a reasonable method *39 for combating these dangers was to limit handgun possession in public to those showing proper cause for the issuance of a license. 1913 Laws of N.Y., ch. 608, at 1627-30. The proper cause requirement has remained a hallmark of New York’s handgun regulation since then. [22]
The decision to regulate handgun possession was premised on the belief that it would have an appreciable impact on public safety and crime prevention. As explained in the legislative record:
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 *40 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). Similar concerns
were voiced in 1987, during a floor debate concerning
possible changes to the proper cause requirement.
See
N.Y.
Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987).
The connection between promoting public safety and
regulating handgun possession in public is not just a
conclusion reached by New York. It has served as the basis
for other states’ handgun regulations, as recognized by
various lower courts.
Piszczatoski
,
Given New York’s interest in regulating handgun
possession for public safety and crime prevention, it
decided not to ban handgun possession, but to limit it to
those individuals who have an actual reason (“proper cause”)
to carry the weapon. In this vein, licensing is oriented to
the Second Amendment’s protections. Thus, proper cause is
met and a license “shall be issued” when a person wants to
*41
use a handgun for target practice or hunting. N.Y. Penal
Law § 400.00(2)(f);
see, e.g.
,
Clyne
,
Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention. It is not, as Plaintiffs contend, an arbitrary licensing regime no different from limiting handgun possession to every tenth citizen. This argument asks us to conduct a review bordering on strict scrutiny to ensure that New York’s regulatory choice will *42 protect public safety more than the least restrictive alternative. But, as explained above, New York’s law need only be substantially related to the state’s important public safety interest. A perfect fit between the means and the governmental objective is not required. Here, instead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere. That New York has attempted to accommodate certain particularized interests in self defense does not somehow render its concealed carry restrictions unrelated to the furtherance of public safety.
To be sure, we recognize the existence of studies and data challenging the relationship between handgun ownership by lawful citizens and violent crime. Plaintiffs' Reply Br. at 37-38. We also recognize that many violent crimes occur without any warning to the victims. But New York also submitted studies and data demonstrating that widespread access to handguns in public increases the likelihood that felonies will result in death and fundamentally alters the *43 safety and character of public spaces. J.A. 453, 486-90. It is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments. Indeed, assessing the risks and benefits of handgun possession and shaping a licensing scheme to maximize the competing public-policy objectives, as New York did, is precisely the type of discretionary judgment that officials in the legislative and executive branches of state government regularly make.
According to Plaintiffs, however, New York’s
conclusions as to the risks posed by handgun possession in
public are “totally irrelevant.” Plaintiffs’ Reply Br. at
38. Because the constitutional right to bear arms is
specifically for self-defense, they reason that the state
may not limit the right on the basis that it is too
dangerous to exercise, nor may it limit the right to those
showing a special need to exercise it. In Plaintiffs’ view,
the “‘enshrinement’” of the right to bear arms “‘necessarily
takes [these] policy choices off the table.’”
Id.
at 39
(quoting ,
We are also not convinced that the state may not limit
the right to bear arms to those showing a “special need for
self-protection.” Plaintiffs contend that their “desire for
self-defense . . . is all the ‘proper cause’ required . . .
its reach to the home and is in sharp contrast with New York’s
view of concealed handguns one-hundred years ago as “the handy,
the usual and the favorite weapon of the turbulent criminal
class.”
Darling
,
by the Second Amendment to carry a firearm.” Plaintiffs’ Br. at 45. They reason that the exercise of the right to bear arms cannot be made dependent on a need for self- protection, just as the exercise of other enumerated rights cannot be made dependent on a need to exercise those rights. This is a crude comparison and highlights Plaintiffs’ misunderstanding of the Second Amendment.
State regulation under the Second Amendment has always
been more robust than of other enumerated rights. For
example, no law could prohibit felons or the mentally ill
from speaking on a particular topic or exercising their
religious freedom.
Cf. Simon & Schuster, Inc. v. New York
State Crime Victims Bd.
,
Moreover, as discussed above, extensive state regulation of handguns has never been considered incompatible with the Second Amendment or, for that matter, the common-law right to self-defense. This includes significant restrictions on how handguns are carried, complete prohibitions on carrying the weapon in public, and even in some instances, prohibitions on purchasing handguns. In this vein, handguns have been subject to a level of state regulation that is stricter than any other enumerated right.
In light of the state’s considerable
authority—enshrined within the Second Amendment—to regulate
firearm possession in public, requiring a showing that there
is an objective threat to a person’s safety—a “special need
for self-protection”—before granting a carry license is
entirely consistent with the right to bear arms. Indeed,
there is no right to engage in self-defense with a firearm
until the objective circumstances justify the use of deadly
force.
[24]
See, e.g.
,
People v. Aiken
,
*47 Plaintiffs counter that the need for self-defense may arise at any moment without prior warning. True enough. But New York determined that limiting handgun possession to persons who have an articulable basis for believing they will need the weapon for self-defense is in the best interest of public safety and outweighs the need to have a handgun for an unexpected confrontation. New York did not run afoul of the Second Amendment by doing so.
To be sure, “the enshrinement of constitutional rights
necessarily takes certain policy choices off the table.”
,
Accordingly, we decline Plaintiffs’ invitation to strike down New York’s one-hundred-year-old law and call into question the state’s traditional authority to extensively regulate handgun possession in public.
III
In view of our determination that New York’s proper
cause requirement is constitutional under the Second
Amendment as applied to Plaintiffs, we also reject their
facial overbreadth challenge.
[25]
Overbreadth challenges are
generally limited to the First Amendment context.
United
States v. Salerno
,
IV
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED .
Notes
[1] The State Defendants include Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman.
[2] Because we affirm the dismissal of Plaintiffs’ suit, we do
not address whether SAF has standing. Where, as here, at least
one plaintiff has standing, jurisdiction is secure and we can
adjudicate the case whether the additional plaintiff has standing
or not.
See Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp.
,
[3] The possession of rifles and shotguns is also regulated. Subject to limited exceptions, it is unlawful to possess a rifle or shotgun “in or upon a building or grounds, used for educational purposes, of any school, college or university . . . or upon a school bus.” N.Y. Penal Law § 265.01(3). It is also unlawful for a person under the age of sixteen to possess a rifle or shotgun unless he or she has a hunting permit issued pursuant to the environmental conservation law. N.Y. Penal Law § 265.05; see also N.Y. Envtl. Conserv. Law § 11-0929.
[4] The prohibition on carrying rifles and shotguns on school grounds, in a school building, and on a school bus also applies to those licensed to carry a firearm under section 400.00. N.Y. Penal Law §§ 265.20(3), 265.01(3).
[5] A license restricted to target practice or hunting permits
the licensee to carry concealed a handgun “in connection” with
these activities.
In re O’Connor
,
[6] Except in New York City, Nassau County, 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). “Licensing officer” is defined in New York City as “the police commissioner of that city”; in Nassau County as “the commissioner of police of that county”; and in Suffolk County as “the sheriff of that county except in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that county.” Id.
[7] Plaintiffs Nance, Marcucci-Nance, and Detmer have carry licenses limited to the purpose of target shooting. Their applications sought to amend their licenses to full-carry licenses.
[8] Plaintiff Kachalsky was the only Plaintiff who appealed
the denial of his full-carry license application. The Appellate
Division, Second Department affirmed the denial, holding that
Kachalsky “failed to demonstrate ‘proper cause’ for the issuance
of a ‘full carry’ permit.”
Kachalsky v. Cacace
,
[9] A number of courts and academics, take the view that
Heller’s
reluctance to announce a standard of review is a signal
that courts must look solely to the text, history, and tradition
of the Second Amendment to determine whether a state can limit
the right without applying any sort of means-end scrutiny.
See
Heller v. District of Columbia
,
[10] The plain text of the Second Amendment does not limit the right to bear arms to the home.
[12]
Nunn
is cited in Justice Scalia’s majority opinion in
Heller
as an example of state court responses to handgun
regulatory efforts within the states. ,
[13] Notably,
Chandler
and
Reid
conflict with Plaintiffs’
position, at least in part. Plaintiffs contend that a state may
choose to ban open carrying so long as concealed carrying is
permitted. But both
Chandler
and
Reid
suggest that open carrying
must
be permitted. The
Reid
court explained:
Under the provision of our constitution, we
incline to the opinion that the Legislature
cannot inhibit the citizen from bearing arms
openly, because it authorizes him to bear them
for the purposes of defending himself and the
State, and it is only when carried openly,
that they can be efficiently used for defence.
[14] These cases were decided on the basis of an interpretation
of the Second Amendment—that pistols and similar weapons are not
“arms” within the meaning of the Second Amendment or its state
constitutional analogue—that conflicts with the Supreme Court’s
present reading of the Amendment.
Fife
,
[15] The extensive history of state regulation of handguns in public is discussed in detail in Part II.B.
[16] Plaintiffs also contend that New York’s requirement that license applicants be “of good moral character” is an unconstitutional prior restraint. Because, as Plaintiffs admit, this provision was not challenged in their complaint or below, we choose not to consider it here.
[17]
Heller v. District of Columbia
,
[18] That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.
[19] Regulations concerning the militia and the storage of gun powder were also common. See Act of May 8, 1792, 1792 Conn. Pub. Acts 440 (forming the state militia); Act of July 19, 1776, ch. I, 1775-1776 Mass. Acts 15 (regulating the militia of Massachusetts); Act of Apr. 3, 1778, ch. 33, 1778 Laws of N.Y. 62 (regulating the militia of New York State); Act of Mar. 20, 1780, ch. CLXVII, 1780 Pa. Laws 347 (regulating the militia of Pennsylvania); Act of Mar. 26, 1784, 1784 S.C. Acts 68 (regulating militia); see also Act of June 26, 1792, ch. X, 1792 Mass. Acts 208 (regulating storage of gun powder in Boston); Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627 (regulating storage of gun powder in New York); Act of Dec. 6, 1783, ch. CIV, 1783 Pa. Laws 161, ch. MLIX, 11 Pa. Stat. 209 (protecting the city of Philadelphia from the danger of gunpowder) .
[20] Curiously, North Carolina referred to the “King's
Justices” after the colonies had won their independence. The
laws in North Carolina, Massachusetts, and Virginia track
language from the 1328 Statute of Northampton, which provided
that no person shall “go nor ride armed by Night nor by Day in
Fairs, Markets, nor in the Presence of the Justices or other
Ministers nor in no Part elsewhere.”
[21]
See
Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67-68;
Act of Apr. 1, 1881, ch. 96, § 1,
[22] New York’s statutory scheme was the result of a “careful balancing of the interests involved” and not a general animus towards guns. Report of the N.Y. State Joint Legislative Comm. On Firearms & Ammunition, Doc. No. 6, at 12 (1965). The legislature explained that “[s]tatutes governing firearms . . . are not desirable as ends in themselves.” Id. Rather, the purpose was “to prevent crimes of violence before they can happen, and at the same time preserve legitimate interests such as training for the national defense, the right of self defense, and recreational pursuits of hunting, target shooting and trophy collecting.” Id.
[23] Plaintiffs are quick to embrace the majority’s view in Heller that handguns are the “quintessential self-defense weapon” for law abiding Americans today and extrapolate that right to public possession of a handgun. Thus, for Plaintiffs, handgun possession in public has the ring of an absolute constitutional right. This of course overlooks Heller’s careful restriction of
[24] There is no question that using a handgun for self-
defense constitutes deadly physical force.
See, e.g.
,
People v.
Magliato
,
[25] We also decline to consider Plaintiffs’ claim under the
Equal Protection Clause. “It is a settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.”
Tolbert
v. Queens Coll.
,