Case Information
*1 Before: W ALKER , C ABRANES , and W ESLEY , Circuit Judges .
New York State Penal Law § 400.00(14) permits New York City (and Nassau County) to set and collect a residential handgun licensing fee that exceeds the allowable fee collected in other parts of New York State. Currently, the cost to obtain a residential handgun license in New York City is *2 $340 for a license which lasts for three years. N.Y.C. Admin. Code § 10-131(a)(2); 38 RCNY § 5-28 (requiring renewal of handgun licenses every three years). In this appeal, which follows a grant of summary judgment dismissing the complaint in the United States District Court for the Southern District of New York (John G. Koeltl, Judge ), we are asked to determine: (1) whether New York City Administrative Code § 10-131(a)(2), which sets the current residential handgun licensing fee in New York City at $340, violates the Second Amendment; and (2) whether New York State Penal Law § 400.00(14), which allows New York City (and Nassau County) to set and collect a residential handgun licensing fee outside the $3-10 range permitted in other jurisdictions in New York State, violates the Equal Protection Clause. We hold that both statutes survive constitutional scrutiny, and therefore affirm the judgment of the District Court.
Judge Walker concurs in the judgment of the Court in a separate opinion.
D AVID D. J ENSEN , David Jensen PLLC, New York, NY, for Plaintiffs-Appellants .
S USAN P AULSON (Francis F. Caputo, Michelle Goldberg- Cahn, on the brief ), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees .
S IMON H ELLER (Barbara D. Underwood, Richard Dearing, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Intervenor-Appellee .
J OSÉ A. C ABRANES , Circuit Judge :
New York State Penal Law § 400.00(14) permits New York City (and Nassau County) to set and collect a residential handgun licensing fee that exceeds the maximum fee allowable under state law in other parts of New York State. Currently, the cost to obtain a residential handgun license in New York City is $340 for a license which lasts for three years. N.Y.C. Admin. Code § 10-131(a)(2); 38 RCNY § 5-28 (requiring renewal of handgun licenses every three years). In this appeal, which follows a grant of summary judgment dismissing the complaint in the United States District Court *3 for the Southern District of New York (John G. Koeltl, Judge ), we are asked to determine: (1) whether New York City Administrative Code § 10-131(a)(2), which sets the current residential handgun licensing fee in New York City at $340, violates the Second Amendment; [1] and (2) whether New York State Penal Law § 400.00(14), which allows New York City and Nassau County to set and collect a residential handgun licensing fee outside the $3-10 range permitted in other jurisdictions in New York State, violates the Fourteenth Amendment’s Equal Protection Clause. [2]
We hold that both statutes survive constitutional scrutiny, and therefore affirm the March 26, 2012 Opinion and Order of the District Court, which granted summary judgment in favor of the defendants and dismissed the complaint.
BACKGROUND
Plaintiffs are individuals who have been issued residential handgun licenses [3] in New York City, and two organizations, the Second Amendment Foundation and the New York State Rifle & Pistol Association (jointly, “plaintiffs”). [4] They bring this action pursuant to 42 U.S.C. § 1983, asserting that: (1) New York City Administrative Code § 10-131(a)(2) (“Admin. Code § 10- *4 131(a)(2)”) violates the Second Amendment by requiring New York City residents to pay $340 [5] to obtain a residential handgun license; [6] and (2) New York Penal Law § 400.00(14) (“Penal Law § 400.00(14)”) violates the Equal Protection Clause of the Fourteenth Amendment by allowing New York City and Nassau County to charge a higher handgun licensing fee than other jurisdictions in New York State.
A. Factual Background
In New York State, it is illegal to possess a handgun without a valid license, even if the handgun remains in one’s residence. See N.Y. Penal Law §§ 265.01(1), 265.20(a)(3). In New York City, the New York City Police Department License Division (“License Division”) is responsible for processing and issuing residential handgun licenses, as well as verifying that each applicant is eligible to receive such a license. See id. § 400.00(1), (4); 38 RCNY §§ 5-01(a), 5-02.
Penal Law § 400.00(14)―one of the statutes challenged by plaintiffs―sets the range of permissible fees that may be charged by localities for firearm licenses in New York State. Although that statute sets the general range of fees at between $3 and $10, it allows the New York City Council and the Nassau County Board of Supervisors to set licensing fees outside of this range. See N.Y. Penal Law § 400.00(14). In relevant part, it provides:
In [New York City], the city council and in the county of Nassau the Board of Supervisors shall fix the fee to be charged for a license to carry or possess a pistol or revolver and provide for the disposition of such fees. Elsewhere in the state, the licensing officer shall collect and pay into the county treasury the following fees: for each license to carry or possess a pistol or revolver, not less than three dollars nor more than ten dollars as may be determined by the legislative body of the county . . . .
*5 Id . Pursuant to Admin. Code § 10-131(a)(2)―the other statute challenged by plaintiffs―New York City currently charges residents $340 for a residential handgun license, which lasts for three years. [7]
The New York City Council has been authorized by state law to set its own licensing fee since 1947, independent of the licensing fee range allowed in other parts of the State. In 1948, the New York City Council set the fee at $10 for an initial handgun license; the maximum fee allowed in other parts of New York State at that time was $1.50. Between 1962 and 2004, the licensing fee in New York City was increased six times. In 2004, Local Law 37 amended Admin. Code § 10- 131(a)(2) to change the residential handgun license from a two-year permit with a fee of $170 to the current three-year permit with a fee of $340. [8] In practical terms, the amendment to § 10-131(a)(2) increased the cost for residential license holders of owning a handgun by $28.33 per year.
The amendment to § 10-131(a)(2) also permitted New York City substantially to recoup the cost of processing license applications. In that regard, the New York City Office of Management and Budget (“OMB”) prepared a “User Cost Analysis” to accompany the introduction of Local Law 37, and this report showed that in Fiscal Year 2003 the average administrative cost for each handgun license application processed by the License Division was $343.49. See Joint App’x 370. The Committee on Finance of the New York City Council submitted a separate report detailing the costs and revenue associated with New York City’s handgun licensing scheme. It stated that, although the costs associated with operating the licensing scheme exceeded $6 million per year, the fees collected only amounted to $3.35 million. See id. at 230. The report also estimated that the increased licensing *6 fees (from $170 per two-year license to $340 per three-year license) would result in an additional $1.1 million in revenue, id. at 231, and concluded that the pre-2004 licensing fee “d[id] not reflect the actual costs of licensing,” id. at 234.
In 2010, the cost of New York City’s licensing scheme again was studied by the New York Police Department (“NYPD”) in conjunction with the OMB. This most recent study concluded each initial residential handgun application cost the License Division $977.16 to process and that each renewal application cost $346.92. Id. at 337, 384, 389.
B. Procedural History
Plaintiffs filed this action on April 5, 2011, against, inter alia , Michael Bloomberg (in his capacity as Mayor of New York City) and the City of New York (jointly, “the City”). By a stipulation dated May 19, 2011, the New York Attorney General (“NYAG”) intervened to defend Penal Law § 400.00(14)’s constitutionality.
On June 23, 2011, plaintiffs moved for summary judgment prior to the completion of any discovery. The City and the NYAG cross-moved for summary judgment on July 28, 2011. On March 26, 2012, the District Court denied plaintiffs’ motion for summary judgment and granted the cross-motions for summary judgment filed by the City and the NYAG. Judgment was entered on March 27, 2012.
With regard to Admin. Code § 10-131(a)(2), the District Court held that the $340 fee did not
impermissibly burden plaintiffs’ Second Amendment rights under the Supreme Court’s “fee
jurisprudence” because it was designed to defray, and did not exceed, the administrative costs of
regulating an individual’s right to bear arms.
See Kwong v. Bloomberg
,
With regard to Penal Law § 400.00(14), the District Court rejected plaintiffs’ Equal
Protection challenge under so-called “rational basis” review. It held that rational basis review was
appropriate inasmuch as this state statute (1) did not involve any suspect classification, and (2) did
not burden plaintiffs’ Second Amendment rights because it
permitted
, rather than
required
, New York
City to set a licensing fee higher than most jurisdictions in New York State.
Id.
at 260. The District
Court also noted that “[e]ven if Penal Law § 400.00(14) could be viewed as disparately burdening the
Second Amendment right by imposing a higher fee on New York City residents, the law would still
pass constitutional muster.”
Id.
at 261 n.13. Specifically, it stated that “[s]everal courts have
declined to apply strict scrutiny [in similar circumstances because they] . . . have concluded that the
Second Amendment analysis is sufficient to protect these rights[,] and [these courts] have either
declined to conduct a separate equal protection analysis or have subjected the equal protection
challenge to rational basis review.”
Id.
(citing,
inter alia
,
Nordyke v. King
,
This appeal followed.
DISCUSSION
“We review an order granting summary judgment
de novo,
drawing all factual inferences in
favor of the non-moving party.”
Viacom Int’l, Inc. v. YouTube, Inc.
,
A. Admin. Code § 10-131(a)(2) Is Constitutional
The first issue to which we turn is whether the $340 handgun licensing fee imposed by
Admin. Code § 10-131(a)(2) violates the Second Amendment,
see
note 1,
ante
, which is “fully
applicable to the States” through the Fourteenth Amendment,
McDonald v. City of Chicago
, 130 S. Ct.
3020, 3026 (2010). The Supreme Court has held that the Second Amendment “confer[s] an
individual right to keep and bear arms.”
District of Columbia v. Heller
,
Plaintiffs’ central argument against Admin. Code § 10-131(a)(2) is that it cannot survive constitutional scrutiny because the $340 licensing fee places too great a burden on their Second Amendment rights. We disagree.
i. The $340 Fee Is Permissible Under the Supreme Court’s “Fee Jurisprudence”
We first consider whether the licensing fee of Admin. Code § 10-131(a)(2) is a permissible
licensing fee. The Supreme Court’s “fee jurisprudence” has historically addressed the
constitutionality of fees charged by governmental entities on expressive activities protected by the
First Amendment―such as fees charged to hold a rally or parade. Two district court decisions that
have considered the issue in the wake of
Heller
and
McDonald
have used the same analytical
framework to consider similar claims involving the exercise of Second Amendment rights.
See Justice
*9
v. Town of Cicero
,
In the First Amendment context, the Supreme Court has held that governmental entities
may impose licensing fees relating to the exercise of constitutional rights when the fees are designed
“to meet the expense incident to the administration of the [licensing statute] and to the maintenance
of public order in the matter licensed.”
Cox v. New Hampshire
,
The undisputed evidence presented to the District Court demonstrates that the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme. Indeed, the only relevant evidence presented to the District Court consisted of: (1) a report by the Committee of Finance of the New York City Council, stating that the revenue generated by the licensing fees in 2004―before the fee increase―covered just over half of the related expenses and “d[id] not reflect the actual costs of licensing,” Joint App’x 230; and (2) a report by the OMB in 2003, noting that the cost per licensing application was $343.49 in 2003 and recommending that the licensing fee be increased to $340 for a three-year license “to recover costs,” id. at 370. A 2010 User Cost Analysis performed by the OMB also showed that the licensing fee did not exceed the administrative costs of the scheme and only generated roughly 35% of the per-unit costs incurred by the City of New York to process initial residential handgun licenses. Id. at 333, 384.
Although plaintiffs are quick to argue that New York City’s residential handgun licensing fee is significantly higher than the fee charged in other jurisdictions, this is simply not the test for *11 assessing the validity of a licensing fee. Even assuming that an otherwise proper fee might be impermissible if it were so high as to be exclusionary or prohibitive, plaintiffs provide nothing beyond unsubstantiated assertions to suggest that the $340 fee for a three-year license reaches this level. Moreover, the facts of this case demonstrate that the $340 fee was not prohibitive or exclusionary as applied to these individual plaintiffs because they all were able to obtain the residential handgun licenses that they sought. In light of these principles and the evidence presented in the record, we hold that the District Court correctly concluded that Admin. Code § 10- 131(a)(2) imposes a constitutionally permissible “fee.”
ii. The $340 Fee Is Not an Unconstitutional Burden
We next consider whether Admin. Code § 10-131(a)(2)’s $340 fee imposes an
unconstitutional burden on the exercise of plaintiffs’ Second Amendment rights. In
United States v.
Decastro
, we held that the appropriate level of scrutiny under which a court reviews a statute or
regulation in the Second Amendment context is determined by how substantially that statute or
regulation burdens the exercise of one’s Second Amendment rights.
On the facts of this case, we find it difficult to say that the licensing fee, which amounts to
just over $100 per year, is anything more than a “marginal, incremental or even appreciable
restraint” on one’s Second Amendment rights―especially considering that plaintiffs have put forth
no evidence
to support their position that the fee is prohibitively expensive.
[14]
See Decastro
, 682 F.3d at
166 (holding that heightened scrutiny is not appropriate where the regulation does not impose a
“substantial burden on the ability of [plaintiffs] to possess and use a firearm for self-defense”);
see
also Kwong
,
But we need not definitively decide that applying heightened scrutiny is unwarranted here
[15]
because we agree with the District Court that Admin. Code § 10-131(a)(2) would, in any event,
survive under the so-called “intermediate” form of heightened scrutiny.
[16]
Under this test, a
regulation that burdens a plaintiff’s Second Amendment rights “passes constitutional muster if it is
substantially related to the achievement of an important governmental interest.”
Kachalsky v. Cnty. of
Westchester
,
We recently observed that “New York has substantial, indeed compelling, governmental
interests in public safety and crime prevention.”
Id.
at 97. Because the record demonstrates that the
licensing fee is designed to allow the City of New York to recover the costs incurred through
operating its licensing scheme, which is designed to promote public safety and prevent gun violence,
we agree with the District Court that Admin. Code § 10-131(a)(2) easily survives “intermediate
*14
scrutiny.”
Kwong
,
For these reasons, we affirm the March 26, 2012 Opinion and Order of the District Court insofar as it concludes that Admin. Code § 10-131(a)(2)’s $340 licensing fee is constitutional.
B. Penal Law § 400.00(14) Is Constitutional
The second issue presented in this appeal is whether Penal Law § 400.00(14), which allows the City of New York (and Nassau County) to set the residential handgun licensing fee outside the $3-10 range permitted in the rest of New York State, violates the Equal Protection Clause. In short, plaintiffs argue that this statutory provision should be reviewed under “strict scrutiny,” and should be found to be unconstitutional “to the extent it authorizes the City to impose a fee greater than $10,” because it burdens the exercise of a fundamental right. Appellants’ Br. 25. We disagree with plaintiffs’ views about the appropriate level of “scrutiny” as well as the constitutionality of the Penal Law § 400.00(14).
i. Penal Law § 400.00(14) Is Subject to Rational Basis Review
Although the Equal Protection Clause “is essentially a direction that all persons similarly
situated should be treated alike,”
City of Cleburne v. Cleburne Living Ctr., Inc.
,
Here, Penal Law § 400.00(14) simply allows the New York City Council to “fix the fee to be
charged for a license to carry or possess a pistol or revolver [in New York City],” while the licensing
fee to carry or possess such a firearm outside New York City must be “not less than three dollars
nor more than ten dollars as may be determined by the legislative body of the county.” N.Y. Penal
Law § 400.00(14).
[17]
But for the purposes of plaintiffs’ Equal Protection challenge, it is perhaps
more important to summarize what Penal Law § 400.00(14) does not do. It does not require the
New York City Council to charge a higher (or lower) fee than other jurisdictions in the State. It
does not restrict other jurisdictions from obtaining a legislative exemption from the $3-10 fee range
like New York City and Nassau County.
[18]
And it does not allow a local government to charge any
fee amount; all license or permit fees in New York cannot exceed “a sum reasonably necessary to
cover the costs of the issuance, inspection and enforcement.”
See ATM One L.L.C. v. Inc. Vill. of
Freeport
,
ii. Penal Law § 400.00(14) Survives “Rational Basis” Review
Penal Law § 400.00(14) survives rational basis review,
[20]
which requires only that there be “a
rational relationship between the disparity of treatment and some legitimate governmental purpose,”
*17
for many of the reasons mentioned above regarding Admin. Code § 10-131(a)(2).
See Heller v. Doe
,
Plaintiffs do not dispute that the State has a legitimate interest in allowing New York City to
recoup the costs incurred by its regulatory schemes more fully.
See
Appellant’s Br. 38-39;
see also Thomas v. Chi. Park Dist.
,
F.3d at 87, helping ensure that the scheme functions properly promotes public safety, see Bach , 408 F.3d at 91 (noting that the State “has a substantial and legitimate interest . . . in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” (quotation marks omitted)).
For these reasons, we conclude that Penal Law § 400.00(14), which permits New York City and Nassau County to charge a fee outside of the $3-10 range applicable in other jurisdictions in New York State, survives rational basis review and does not violate the Equal Protection Clause.
CONCLUSION
To summarize, we hold that, on the facts presented in this appeal: (1) Admin. Code § 10-131(a)(2), which sets the residential handgun licensing fee in New York City at $340 for a three-year license, is a constitutionally permissible licensing fee; (2) Although we are skeptical that Admin. Code § 10-131(a)(2) should be subject to any form of heightened scrutiny, see United States v. Decastro ,682 F.3d 160 , 164 (2d Cir. 2012), we need not definitively answer that question because we conclude that it survives “intermediate scrutiny” in any event;
(3) Penal Law § 400.00(14), which allows New York City (and Nassau County) to set and collect a residential handgun licensing fee outside the $3-10 range permitted in other jurisdictions in New York State, is subject only to “rational basis” review under the Equal Protection Clause because it “neither burdens a fundamental right nor targets a suspect class.” Romer v. Evans ,517 U.S. 620 , 631 (1996); and (4) Penal Law § 400.00(14) survives “rational basis” review.
Accordingly, the March 27, 2012 judgment of the District Court is AFFIRMED . *19 12-1578-cv
Kwong v. Bloomberg
JOHN M. WALKER, JR., Circuit Judge, concurring:
This case presents complicated questions in an area of law in which the Supreme Court has provided limited guidance. The full import of the Second Amendment right and the government’s burden to justify the infringement of this right in different contexts remain opaque. Thus, it is not entirely surprising that, while I agree with the majority that the two laws at issue here are constitutional, I reach that conclusion by a different route.
I would hold that Administrative Code § 10-131(a)(2), which
imposes a non-negligible, indeed significant, initial handgun
licensing fee of $340, does not violate the Second Amendment.
Although the fee constitutes a substantial burden on the
fundamental Second Amendment right to possess a handgun in the home
for self-defense, see McDonald v. City of Chicago,
3036 (2010), and thereby necessitates intermediate scrutiny, the statute survives such heightened review. The government interest at stake—protecting the public safety—is an important one, and the fee is collected solely to recoup the costs of the licensing regime *20 that is designed to further that interest. Indeed, because of the heightened public safety concern in the Second Amendment context, I find it unlikely that handgun licensing fees tied to cost recovery would ever fail to meet this heightened standard.
Second, I would hold that Penal Law § 400.00(14) does not violate the Equal Protection Clause, despite the fact that it, in combination with local law, permits the City of New York and Nassau County to impose significantly higher residential handgun licensing fees than other New York counties. The fee disparity burdens the exercise of a fundamental right differently for different New York State residents and therefore demands a heightened level of review. However, the governmental interest at issue here—permitting local discretion in deciding whether and how to recoup costs related to protecting the public safety—justifies this disparity.
A. Administrative Code § 10-131(a)(2) Does Not Violate the Second
Amendment
The majority begins its analysis of the constitutionality of Administrative Code § 10-131(a)(2) under the Second Amendment with a discussion of the Supreme Court’s First Amendment “fee jurisprudence.” It concludes—and I agree—that the $340 licensing charge is not an unconstitutional tax, but rather a constitutionally permissible fee.
The majority then addresses the question of whether the fee is an unconstitutional burden on the Second Amendment. In other words, *21 does § 10-131(a)(2) impose a substantial burden on the fundamental right to keep a handgun in the home?
As the majority notes, the Second Circuit does not read
Supreme Court jurisprudence as “mandat[ing] that any marginal,
incremental or even appreciable restraint on the right to keep and
bear arms be subject to heightened scrutiny.” United States v.
Decastro,
While I agree with the majority that § 10-131(a)(2) survives
intermediate scrutiny, I believe that such review is required. The
Supreme Court has clarified that a law-abiding citizen’s right to
*22
possess a handgun in the home for self-defense is fundamental. See
McDonald,
a firearm across state lines, “there are no alternative options for
obtaining a license to [have] a handgun.” Kachalsky v. Cnty. of
Westchester,
Intermediate scrutiny is sufficient, however, because a
licensing fee imposes only a burden—not a ban—on this fundamental
right. Id. at 93-97. Accordingly, and for substantially the same
reasons advanced by the majority, I believe that § 10-131(a)(2)
easily survives intermediate scrutiny. Indeed, I would go a step
further. As we recently noted, “[t]he regulation of firearms is a
paramount issue of public safety, and recent events in [Newtown,
Connecticut] are a sad reminder that firearms are dangerous in the
*23
wrong hands.” Osterweil v. Bartlett,
B. Penal Law § 400.00(14), Separately or In Combination with Local
Law, Does Not Violate the Equal Protection Clause The majority reasons that, because Penal Law § 400.00(14) “simply allows the New York City Council to fix the fee to be charged for a license to carry or possess a pistol or revolver in New York City,” ante at 15 (quotation marks and alteration omitted), it “itself does nothing to burden anyone’s Second Amendment [fundamental] rights,” ante at 16. Furthermore, the
majority notes, § 400.00(14) does not permit New York City and
Nassau County to charge any amount they wish; no licensing fee can
exceed “a sum reasonably necessary to cover the costs of the
issuance, inspection and enforcement.” ATM One LLC v. Inc. Vill. of
Freeport,
1 This analysis both blinks reality and condones a loophole that 2 permits disparate burdens on a fundamental right for different 3 individuals. Penal Law § 400.00(14) does not operate in a vacuum; 4 it is applied through local legislation that has the result of a 5 gun owner paying a $340 handgun licensing fee in one New York State 6 jurisdiction and a $10 fee in another. This disparate burden of a 7 fundamental right necessitates more exacting scrutiny than rational 8 basis review.
*25
Courts apply heightened scrutiny when a legislative
classification burdens a fundamental right. Romer v. Evans, 517
U.S. 620, 631 (1996) (“[I]f a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the legislative
classification so long as it bears a rational relation to some
legitimate end.”). However, strict scrutiny does not appear
warranted when, as here, an Equal Protection Claim is based on a
burdening of a fundamental right that demands only intermediate
scrutiny under that right’s jurisprudence. See Ramos v. Town of
Vernon,
Even if strict scrutiny were applicable, this would be one of those rare situations where strict scrutiny would not be fatal in fact. See Adam Winkler, 59 Vand. L. Rev. 793, 815, 862-63 (2006) burden—and a potentially prohibitive burden—on exercising a fundamental right. This requires heightened review under the Equal Protection Clause. I am not suggesting, as the majority implies, that the claim under the Equal Protection Clause should necessarily receive more exacting scrutiny than that under the Second Amendment. See ante at 16 n.19. I read the majority opinion to imply that both claims can be reviewed for rational basis, and I am applying the same standard of review—intermediate scrutiny—to both claims.
(finding that approximately 30 percent of all applications of
strict scrutiny result in the challenged law being upheld); United
States v. Miles,
First, there is an important and compelling governmental
interest in allowing local governments to be flexible in setting
fees to recoup costs related to protecting the public safety if
they so choose, even if this results in different localities
charging different fees for a constitutionally-protected activity.
See Cox v. New Hampshire,
5 For the above reasons, I believe that Administrative Code 6 § 10-131(a)(2) and Penal Law § 400.00(14)—separately, or in 7 combination with local implementing law—are constitutional, and I 8 concur in the majority’s conclusion that the district court’s 9 judgment should be affirmed.
Notes
[1] The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.
[2] The Fourteenth Amendment provides, in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
[3] In particular, this case involves residential “Premises License[s],” 38 RCNY § 5-23, which allow a license holder
to “have and possess [a handgun] in his dwelling.” N.Y. Penal Law § 400.00(2)(a). For ease of expression, we refer to
these so-called “premises-residence handgun licenses,”
see, e.g.
,
Rombom v. Kelly
,
[4] Before the District Court, but not on appeal, the New York Attorney General argued that plaintiffs lacked
standing to bring this § 1983 action. The District Court held that the individual plaintiffs who paid $340 and obtained a
residential handgun license had standing to bring this action.
Kwong v. Bloomberg
,
[5] In addition to the $340 licensing fee, the record indicates that applicants are required to pay an additional $94.25 fee for fingerprinting and background checks conducted by the New York State Division of Criminal Justice Services. This fee is paid only for initial applications, not for renewals, and is not contested on appeal.
[6] Although the License Division issues licenses for many different types of firearms, the questions presented in this appeal concern only the fee associated with obtaining a residential handgun license.
[7] Nassau County currently charges residents $200 for a five-year residential handgun license.
[8] Admin. Code § 10-131(a)(2) now provides: Every license to carry or possess a pistol or revolver in the city may be issued for a term of no less than one or more than three years. Every applicant for a license to carry or possess a pistol or revolver in the city shall pay therefor, a fee of three hundred forty dollars for each original or renewal application for a three year license period or part thereof, a fee of ten dollars for each replacement application of a lost license.
[9] The NYAG moved for summary judgment with regard to the part of the action directed at Penal Law § 400.00(14) only.
[10] We also observed in
National Awareness Foundation
that a fee is not unconstitutional “simply because the
revenues derived therefrom are not limited solely to the costs of administrative activities, such as processing and issuing
fees.”
[11] Plaintiffs argue briefly, in reliance on
Murdock
, that the $340 licensing fee cannot withstand scrutiny because it
is not “a nominal fee.” This argument, however, specifically has been rejected by the Supreme Court.
Forsyth Cnty. v.
Nationalist Movement
,
[12] This challenge does not present us with the hypothetical situation where a plaintiff was unable to obtain a
residential handgun license on account of an inability to pay the $340 fee.
See United States v. Skoien
,
[13] Other circuits have applied similar analytical frameworks to review provisions that regulate Second
Amendment rights.
See, e.g.
,
United States v. Masciandaro
,
[14] As noted above, each individual plaintiff was able to, and did, obtain a residential handgun license.
[15] In his concurring opinion, Judge Walker asserts that Admin. Code § 10-131(a)(2) must be subject to “intermediate scrutiny” because “[a]ny non-nominal licensing fee necessarily constitutes a substantial burden” on one’s Second Amendment rights. Concurrence, at 4, post . Beyond the lack of legal authority to support this proposition, see id. , we find such an assertion particularly problematic on the facts of this case because plaintiffs have put forward no evidence to suggest that Admin. Code § 10-131(a)(2) operates as a “substantial burden.” Although we are mindful that a hypothetical licensing fee could be so high as to constitute a “substantial burden” and that any licensing fee could “substantially burden” a hypothetical plaintiff’s Second Amendment rights, we are not confronted with a hypothetical fee or a hypothetical plaintiff. Accordingly, we need not―and do not―decide whether heightened scrutiny is appropriate here because we conclude that Admin. Code § 10-131(a)(2) survives “intermediate scrutiny.” Moreover, it is unclear to us where the dividing line between a “nominal” fee and a “non-nominal” fee is located. Judge Walker’s concurring opinion provides no answer, and instead of attempting to draw a line between “nominal” and “non-nominal” fees, we think it a far better approach to require plaintiffs to put forth at least some evidence to suggest that a fee operates as a “substantial burden.” In any event, we emphasize that this disagreement with Judge Walker amounts to an academic exercise inasmuch as we do not decide whether heightened scrutiny is warranted in the circumstances here presented.
[16] Because Admin. Code § 10-131(a)(2) does not ban the right to keep and bear arms but only imposes a burden
on the right, we agree with the District Court that strict scrutiny is not appropriate here.
See Kachalsky v. Cnty. of
Westchester
,
[17] As noted above, Nassau County also is exempted by this provision from the $3-10 licensing fee range.
[18] Moreover, there is no evidence that another local government (other than the City of New York and Nassau County) has sought to set its licensing fee outside of the $3-10 range, as New York City did. Nor is there any evidence that any such a request was rejected by the New York legislature.
[19] To the extent that plaintiffs argue that the fee scheme burdens a fundamental right, it can only be so if it results
in New York City (or Nassau County) adopting a fee that itself impermissibly burdens the Second Amendment right.
But, as noted above, the $340 licensing fee required by Admin. Code § 10-131(a)(2) survives “intermediate scrutiny,”
see
Discussion Section A.ii,
ante
, and Penal Law § 400.00(14) does not involve a suspect classification. In such
circumstances, courts have applied “rational basis” review to Equal Protection claims on the theory that the Second
Amendment analysis sufficiently protects one’s rights.
See, e.g.
,
Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms
& Explosives
,
[20] Although we conclude that Penal Law § 400.00(14) survives rational basis review, we make no comment on the
wisdom of this particular scheme, which limits all but two localities to a small fee range. Of course, such considerations
are for the legislature to determine.
See Williamson v. Lee Optical of Okla.
,
[1] Because it does not state that the fee definitively constitutes a substantial burden on the Second Amendment right, the majority implies that rational basis review may be sufficient. Since I find that charging a non-nominal fee for the exercise of a right protected by the core of the Second Amendment imposes a substantial burden on a fundamental right, I believe heightened scrutiny of the fee statute is necessary.
[2] Portions of the majority’s opinion might be read as stating that a fee of $100 per year is not a substantial burden. See ante at 12 (“On the facts of this case, we find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a marginal, incremental or even appreciable restraint on one’s Second Amendment rights—especially considering that plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive.” (quotation marks omitted)). I do not believe that whether a fee is prohibitive is the appropriate test for evaluating whether it imposes a substantial burden. Although some fees may be so marginal as to be immaterial, a $340 licensing fee is not nominal and therefore constitutes a substantial burden. Certainly, it may be negligible for some individuals, while for others it would present a prohibitively costly barrier to exercising a fundamental right.
[3] The majority observes that, if a law is found constitutional
under Second Amendment jurisprudence, courts generally apply only
rational basis review to associated Equal Protection Clause claims.
See ante at 16 n.19 (citing First, Fourth, Fifth, and Ninth Circuit
decisions applying rational basis review to an Equal Protection
Clause claim after finding that the contested law survived the
review required under the Second Amendment). Those cases, which
dealt with regulation of conceal-and-carry licenses, handgun
ownership by young adults, and firearms possession on public
property, did not consider the impact of a law on the core Second
Amendment right of gun ownership for defense of the home. Moreover,
they provide little, if any, explanation for their decision to
short-circuit the usual Equal Protection Clause analysis.
Although the Supreme Court has found that laws which survive
review under the Free Exercise jurisprudence receive only rational
basis review under an associated Equal Protection Clause claim, see
Locke v. Davey,
[4] The plaintiffs do not challenge the state’s calculation of the costs of its licensing regime.