United States v. Decastro

an abuse of compromise was not offer both Accordingly, we reverse

discretion. and its contrary ruling

the Tax Court’s attorneys’ fees.

concomitant award

Reversed. America,

UNITED STATES of

Appellee, DECASTRO,

Angel Defendant-

Appellant.

Docket No. 10-3773. Appeals, States Court of

United

Second Circuit. 30, 2011.

Argued: Nov.

Decided: June JACOBS, Judge, HALL

Before: Chief LYNCH, Judges. Circuit JACOBS, Judge: DENNIS Chief Following stipulated a bench trial on in facts the United States District Court for the Southern District of New York (Patterson, ./.), Angel Decastro was con- transporting victed of into his state of acquired a firearm another residence 922(a)(3). in violation of 18 U.S.C. state appeals ground on the violates his Second Amend- ment and bear arms. He argues: ^[1] is unconstitu- tional on its face; ^[2] that, in combina- scheme, licensing tion with New York’s transportation on the into prohibition New of a firearm purchased York another virtually impossible made it for him handgun a for obtain self-defense. For reasons, following judgment court district is affirmed.

BACKGROUND 2002, Angel In Decastro moved from run help step- Florida to New York to his dry cleaning July father’s business. 2004, an encounter between Decastro gang into a confron- a customer escalated tation. Police arrested Decastro and customer, charges dropped. but all were retaliation, Decastro feared police of a New York de- recommendation tective, requested appli- license Depart- cation from the York Police New (“NYPD”). ment He did not submit an (he maintains) application because he was Cassidy, Colleen P. Federal Defenders told an NYPD desk officer that there Inc., York, NY, York, New for of New way” application “no was would Appellant. approved. (Brent Wible, Decastro, Brian A. S. who was licensed own Jacobs Florida, brief), purchased firearms Attorney, States Assistant United Bharara, gun dealer on a visit there in for Preet United States Attor- from York, pis- February 2005: a Taurus model PT92 ney, Southern District New Pistol”) (the York, NY, “Taurus and a nine- Appellee. tol Glock In connection with handgun. ground millimeter miss indictment that the purchase, required Decastro was statute violated his Second Amendment Alcohol, sign Form 4473 of the Bureau of for self-defense. Tobacco, Explosives. Firearms and On it argued facially He was falsely gave he Florida rather than New unconstitutional under District Colum- York as his state of residence. Decastro bia v. handgun (2008), left the Glock in Florida but and that New transported the Taurus Pistol home to City’s licensing require- York restrictive York, kept dry- New where he it at the were sup- ments tantamount to a ban. In cleaning for protection. business port, showing Decastro submitted a chart applications pistol that few for licenses family dry-clean- The Decastro sold the were received and York issued New 2005; ing May February business in in City in period 2004-2006. For resi- 2006, Decastro moved to Florida. Before licenses, dential-premises handgun an av- York, leaving gavé Decastro the Tau- erage applications of 858 new were submit- rus Pistol to a relative in the Bronx. De- annually ted average and an of 620 licenses planned castro it back to Flor- transport issued; business-premises were for licens- ida in a few months’ time. es, average applications of 59 new were In July reported a Bronx woman annually submitted average and an of 50 to the NYPD that she had found the Tau- licenses were issued.2 rus in along Pistol her closet with other The district court declined to dismiss the belonged items that to her common-law indictment. Inferring from the NYPD (who Decastro). husband was a relative of statistics that high grant there is a rate for police A yielded search of the closet in City, licenses New York Taurus Pistol guns, as well as two other rejected court argument Decastro’s that he handcuffs, masks, and police fake shields. effectively § was forced to violate subsequently Decastro was indicted for by traveling outside the state in order to violating 922(a)(3). U.S.C. That statute secure a for self-defense. The (subject to certain exceptions applica- court did not address Decastro’s here1) prohibits ble anyone other than a is unconstitutional on its manufacturer, licensed importer, dealer or face. collector transporting from into his state of residence a purchased trial, firearm or obtained At the parties stipulated bench outside that state. Decastro following moved to dis- facts: 1. The statute er’s home state and the state in which the legal or rented seller’s arm in dence, provided that ducted in for state of quired acquired by inheritance outside the owner’s 922(a)(3)(B), (b)(3)(A), 922(a)(3)(A), purposes, conditions of outside of the owner to residence, provided place person for her temporary does not §id. of business ^[2] home and in purchase sale 922(a)(3)(B), rifles purchaser's the transaction is con- apply use for lawful compliance ^[3] state, both the or that it is'lawful firearms loaned to: shotguns located, state of (b)(3)(B), ^[1] 18 U.S.C. purchas- with the firearms a fire- sport- resi- ac- id. 2. The number of licenses issued for business premises suggests does not affect our issued in the license renewals that are not considered "new applications,” new any statute, the number of licenses issued includes applications transportation §id. in 2006 exceeded the number of prior 922(a)(3)(C). year they licenses were not or both. -to the effective date of the received that analysis. aof were In firearm applied year, acquired necessarily event, for, this or our review is argument, As to each de had never been licensed Decastro Pettus, manufacturer, States v. dealer or novo. See United importer, Cir.2002). (2d firearms; collector of through Febru at least 2002 From I in New Decastro resided ary Florida; York, not already “a defendant has When specific conduct under been convicted purchased April law,” considering a court challenged Pistol from a firearms the Taurus a criminal must facial statute Florida; dealer “ complainant’s conduct be ‘examine the in April it purchasing After analyzing hypothetical applica fore other February 2006—while prior but to ” Farhane, tions.’ United States v. in York—Decastro he resided New Cir.2011) 127, 139(2d (quoting F.3d Vill. of willfully transported knowingly and Flipside Estates v. Es Hoffman Hoffman Pistol from Florida to the Taurus tates, Inc., 489, 495, 455 U.S. York, gave it to a resident (1982)). 1186, 71 L.Ed.2d 362 We are Bronx; “ guided by principle person ‘the that a to applied for and was Decastro never constitutionally may whom a statute be possess to not issued a license challenge not be heard to applied will York, he in New and when firearm ground may statute on the that it conceiv pistol from Florida transported ably applied unconstitutionally to oth York he knew that his con to New ers, in other situations not before the ” unlawful. duct was Levy, Parker v. Court.’ (1974) (quot 41 L.Ed.2d 439 guilty found Decastro The district court Oklahoma, ing Broadrick v. the sole count of the indictment on (1973)). years probation him to two sentenced that a defendant fails to It follows who (and mandatory special imposed a $100 challenged that a law un demonstrate assessment). appeal This followed. applied to him has “neces constitutional as challenge, sarily to state a facial fail[ed] DISCUSSION that no requires to establish [him] under which set of circumstances exists the con- appeal, challenges On Diaz v. Pa the statute would be valid.” stitutionality of 18 U.S.C. two grounds: ^[1] it is facially unconstitu- terson, (2d Cir.2008) (in marks and omit quotation ternal brackets impermissibly burdens tional because ted). already Decastro has been Since guaran- and bear arms teed by the Amendment; and ^[2] convicted 922(a)(3), the first step of his facial our consideration licensing with New York’s when combined burden, any, if that the is to assess the scheme, transporta- prohibition on Decastro himself. imposed statute has purchased York of a firearm tion into New impos- practically state made it another II handgun for self- for him to secure sible The district court confined its defense. A. argument; ap- analysis to the second respect first with principally on the Decastro’s peal Decastro focuses unconstitutionality of first. (internal interplay gesture” quotation him focuses on the a “futile

applied to omitted)). licensing But between New York state marks evidence ar- futility and federal firearms law. Decastro Decastro offers show is the licensing the restrictive gues that because hearsay po- statement of an unidentified effectively in his home state com- scheme lice desk officer who had no con- apparent get him a hand- pelled go elsewhere licensing process, nection to the gun, prevented him from exer- incompatible with the whose view cising his Second Amendment report NYPD that Decastro submitted to handgun for self-defense. showing roughly court the district 2/3 applications license dur- 3/4 argu premise The of Decastro’s period question granted. were licensing ment is that New York’s scheme Although the absolute number of defective; constitutionally ar is itself granted historically licenses has been tantamount to a chal gument is therefore small, applications so has the number of However, lenge to that scheme. because received. Decastro has adduced no evi- Decastro failed to for a license apply appli- dence that the low volume of license York, standing in New he lacks to chal product futility cations is itself a of the of lenge licensing the laws the state. “As application process. the He has therefore matter, general standing a to establish to not the showing made substantial of futili- challenge allegedly an unconstitutional ty necessary apply to excuse his failure to policy, plaintiff must submit to the chal for a license New York. lenged policy.” Jackson-Bey v. Han (2d slmaier, Cir.1997); 1091, 115 F.3d Wright,

see also Allen v. 468 U.S. B. 82 L.Ed.2d 556 Having concluded that Decastro is in no (1984) (holding parents that lacked stand position challenge to constitutionality the to challenge tax-exempt the status of §of based on the asserted effects allegedly racially discriminatory private scheme, licensing of New York’s we now schools to which their children had not consider Decastro’s that Irvis, applied); Lodge Moose No. 107 v. 922(a)(3) is, terms, its own unconsti- 163, 166-68, (1972) infringes tutional because it the core Sec- (holding L.Ed.2d 627 that an Afri right ond Amendment of law-abiding citi- can standing challenge American lacked to possess zens to firearms for self-defense. discriminatory membership policy the of a Decastro maintains that the statute should club to which he never applied). Failure (at subject scrutiny to strict mini- to for a apply preclude license would not mum) scrutiny, intermediate and that it Decastro’s if he made a “sub cannot showing” submitting appli stantial an withstand review under either stan- cation “would have dard. been futile.” Jackson- 1096;

Bey, 115 F.3d at Bach v. Pataki cf. (2d Cir.2005) heightened scrutiny We hold that (holding 408 F.3d 82-83 appropriate only regulations as to those plaintiffs challenge to New York’s substantially burden the gun licensing laws to applicable non-resi justiciable dents was Amendment. Because despite his failure to minimally ability apply acquire for a license because he was statuto affects the firearm, rily subject ineligible for a license and therefore is not form of (We submitting application heightened scrutiny. would have been therefore need forbidding carrying scrutiny applicable “laws firearms level of not decide burden.)3 impose places as schools and do such in sensitive such to laws that buildings, imposing or laws

government 1. the com- qualifications on conditions “A provides: 626-27, The Second sale of arms.” Id. at mercial Militia, necessary to being regulated well 2783; City see also McDonald v. S.Ct. — State, right free security of a -, U.S. Chicago, Arms, shall and bear people (2010) (reiterating Const, II. U.S. amend. infringed.” not be assurances that the decision “did Heller’s Heller, the Su- In Columbia v. District of regu- longstanding doubt on such not cast Amend- held that the Second preme Court measures”).4 Although the Court latory pre-existing “individual ment codified classes expand why not on these two did in case carry weapons possess would be the nat- permissible, restrictions 592, 128 at of confrontation.” time, explanation place is that ural S.Ct. significantly may manner restrictions self-de- the need for emphasizing a firearm for impair fense, relied the historical Court self-defense, may impose apprecia- no meaning text of the record and rights. burden on Second Amendment ble ratifica- the time of Second Amendment Heller the consti- Throughout, identifies to announce The Court declined tion. infirmity District of Colum- tutional precise applicable of review standard terms of the burden bia infringe the Second Amendment laws that fire- ability possess of D.C. residents to (by the laws issue right because at empha- arms for self-defense. The Court categorically of Columbia the District the prohibited sized that ban the all required and handguns, banned weapon by chosen Ameri- popular “most kept would inoperable) firearms be other home,” Heller, for self-defense in the cans the of “[u]nder unconstitutional 629, 2783, that at 128 S.Ct. the scrutiny applied that we have standards of “makes to disable all firearms mandate rights.” Id. to enumerated constitutional for citizens to use them for the impossible 628-29, At the same at 128 S.Ct. 2783. and purpose core lawful of self-defense is time, any reading that Heller disclaims 630, unconstitutional,” things) id. at 128 question (among other hence calls into time, place and certain In addition to these manner 3. We also need not decide whether 4. restrictions, might regulate is regula- laws conduct that "presumptively firearm the lawful by entirely unprotected Amend the Second tory by measures" cited the Court included ment, weapon type of whether because of the "longstanding prohibitions possession on the involved, claiming person of the the status the mentally by ill.” firearms felons and the of right sought exer right, where the to be or 26, 626, U.S. at 627 n. 128 S.Ct. 554 City Chicago, v. 651 F.3d See cised. Ezell of the The Court also noted that 684, (7th Cir.2011); v. United States 701-03 right encompass all Amendment does not 792, (10th Cir.2010), Reese, 627 F.3d 800-01 only possessed “typically weapons, but those - 2476, -, denied, cert. purposes” law-abiding by citizens for lawful (2011); 1214 States 179 L.Ed.2d United right possess not and thus does include the 673, Cir.2010); Chester, (4th 628 F.3d 680 weapons.” Id. "dangerous at unusual 85, Marzzarella, F.3d 89- States v. 614 United 627, 625, (internal quotation 128 S.Ct. 2783 -, denied, Cir.2010), (3d -U.S. cert. 91 omitted). marks 958, (2011); cf. 1244, Columbia, 670 F.3d Heller v. District of (D.C.Cir.2011). 1253 166 added), trigger heightened scrutiny arms (emphasis

S.Ct. 2783 history Amendment.”), the of our Nation reh’g “[f]ew laws the Second in banc (9th close to the restriction of Cir.2011); have come severe 664 774 granted, F.3d see ban,” at 128 the District’s id. Columbia, also Heller v. District 670 of S.Ct. 2783. (D.C.Cir.2011) (laws F.3d that have a “de minimis” effect on the emphasized practical im- The Court bear arms that do not “mean abili- pact challenged regulation of a ingfully affect individual self-defense” do ty guns and use citizens impinge on the Second Amendment purpose the core lawful self-defense. (in right and therefore do not height warrant justified That emphasis implicitly (internal scrutiny quotation ened marks opinion) by history the Amendment omitted)); by City Chicago, as a En- Ezell v. response measures taken cf. III, (7th Cir.2011) glish George kings, including di- (holding F.3d 592-95, citizenry, sarm id. at see severe “a burden the core Second by S.Ct. and is reinforced Amendment of armed self-defense grounds by majority used to distin- require extremely strong will public- guish founding-era laws cited justification interest and a close fit be majority dissent. Thus the distinguished government’s means tween and its 18th-century storage regulating restricting activity ly end” but that “laws gunpowder, excess id. margins closer to the of the Second regu- and the laws of colonial cities right, merely regu laws that time, lating place manner for the dis- restrict, rather than late and modest bur (as charge public of firearms streets may dens on the right easily be more Eve), or on taverns New Year’s id. at Masciandaro, justified”); United States v. 632-33, 128 S.Ct. 2783. Such colonial laws (4th Cir.) (endorsing did not much burden self-defense and had sliding approach determining scale a minimal deterrent effect on the exercise of scrutiny applicable level to laws that rights. of Second Amendment rights burden Second Amendment depend emphasis weight Given Heller’s on the ing part in on “the extent [Second to which laws, the imposed by burden the D.C. by Amendment] interests are burdened we do not read the to that case mandate — denied, government regulation”), cert. any marginal, incremental or even appreci- U.S.-, 756, 132 S.Ct. 181 L.Ed.2d 482 right able restraint on keep the to and (2011); Marzzarella, United States v. 614 bear subject heightened arms be to scruti- (3d 85, Cir.2010) (suggesting 94-95 ” Rather, ny. heightened scrutiny trig- is that a “de right minimis burden (like gered those restrictions that keep to might arms for self-defense not the complete prohibition handguns heightened warrant scrutiny), cert. de Heller) struck in operate down as a sub- —nied, -, 958, U.S. 131 S.Ct. 178 stantial ability burden on the of law-abid- (2011). L.Ed.2d 790 ing to citizens use a firearm (or Reserving scrutiny heightened regu- for for self-defense other pur- lawful that burden poses). lations the Second Amend- approach This support, finds to right substantially ment varying degrees, in is not inconsistent other See Circuits. (9th 776, Nordyke King, right v. with the classification of fun- 644 F.3d as 786 Cir.) (“[0]nly regulations liberty which damental to our scheme of ordered substan- tially right burden the City Chicago, to and to bear in McDonald v.

167 is on a decision to termi- showing A threshold burden” woman’s similar at 3036.5 e., scrutiny pregnancy, regulations i. trigger heightened to nate her needed “ alleged infringe purpose other fundamental or effect of a placing have ‘the right marry The rights. path in the constitutional obstacle of woman substantial fundamental, regula- ”) but “reasonable an seeking (quoting abortion’ Planned significantly interfere that do not tions Casey, Pa. v. 505 U.S. Parenthood Se. into marital to enter decisions with 2791, 112 120 L.Ed.2d 674 S.Ct. subject “rigor- relationship” are Racism, (1992)); Against Rock Ward v. scrutiny” applied to laws that that is ous 781, 2746, 791, 109 105 491 U.S. S.Ct. substantially with directly and “interfere (1989) (reasonable time, place L.Ed.2d 661 Redhail, marry.” Zablocki v. right subject manner restrictions are to less- 374, 386-87, 98 54 S.Ct. 434 U.S. scrutiny they as long er as are content- (1978). 618 The to vote L.Ed.2d preserve “ample alternative neutral fundamental, rigorousness “the of our but channels for communication of infor- into of a elec- inquiry propriety (internal quotation mation” marks omit- which depends upon tion law extent to ted)). challenged regulation burdens First In whether a deciding law substan rights.” Burdick Fourteenth Amendment tially rights, burdens Second Amendment Takushi, 428, 434, 112 S.Ct. 504 U.S. appropriate prin it is therefore consult (1992); see also L.Ed.2d from other areas of constitutional ciples 757- Rockefeller, Rosario v. U.S. (to law, including First (1973) Amendment 1245, 36 L.Ed.2d 1 repeatedly). Heller adverted See conditioning (upholding law 582, 595, 635, primaries, because the restriction vote (analogizing limitation to First doc not “so 2783 imposed time was Ezell, trine); see also 651 F.3d at 702-04 as itself to constitute unconstitu- severe tionally petitioners’ parallels from the (drawing onerous burden First Amend franchise”). exercise of analyze ment context Second Amend claims); Marzzarella, ment 614 F.3d at 89 weight The of the burden matters (looking & n. to the structure assessing regu- permissible bounds guidance First Amendment for in evaluat as lation other constitutional contexts challenges). Second Amendment well, abortion, free takings, such evaluating reasonableness of content- See Lucas v. S.C. Coastal Coun- speech. time, place regulations or manner neutral 1014-16, cil, S.Ct. Amendment, the First we ask (1992) (only regula- those challenged regulation whether go require that “too far” property tions on open ample channels “leave[s] alternative just compensation under payment (internal of the information.” for communication Takings quotation Clause Non-Violence, Carhart, Cmty. omitted)); Creative Stenberg v. 530 Clark marks for 288, 921, 2597, 293, 3065, 914, 104 S.Ct. 82 147 L.Ed.2d 468 U.S. (1984). (2000) Regulation may “re a state L.Ed.2d (prior viability, to fetal impose degree potential that an “undue to some audience may not enact laws duce undoubtedly impose signifi- that did language is it with in Hel- tions 5. Nor inconsistent rejecting burden core Second Amendment ler rational basis review for cant infringe rights. rights. It had occasion to consider Amendment See no that Second 27, Heller, appropriate of review for laws that n. 128 S.Ct. 2783. standard 554 U.S. at 628 Heller, minimally rights. impact was restric- such the Court faced with speech” long so [one’s] as the remain- contravention of gov- State and local laws ing avenues of communication are [ erning acquisition [firearms]”). Ade- Ward, quate.” 802, 491 U.S. at 109 S.Ct. Moreover, interpreted by the Bureau of By analogy, 2746. regulates law that the Alcohol, Tobacco, Explo- Firearms and availability of firearms is not a substantial sives, 922(a)(3) § does purchases not bar burden on the right keep and bear arms from an if supplier gun out-of-state if adequate alternatives remain for law- first transferred to gun a licensed dealer in abiding citizens to acquire a firearm for purchaser’s home state. See Bureau Nordyke, self-defense. See 644 F.3d at Alcohol, Tobacco, Explo- Firearms and 787-88; see also 554 U.S. at 626- sives, Frequently Questions, Asked avail- 27, 128 S.Ct. 2783 (identifying as presump- able at http://www.atf.gov/firearms/faq/ tively lawful imposing “laws conditions and unlicensed-persons.html# out-of-state-fire- qualifications on the commercial sale of (last 2012).6 arm.html visited on May arms”). In light of the ample alternative means of acquiring firearms for pur- self-defense 2. 922(a)(3) § poses, does not impose a sub- Applying those principles to Decas stantial burden on the exercise of Decas- tro’s challenge, we conclude that tro’s Second rights. 922(a)(3) § does not substantially burden keep and bear arms. Section HH 922(a)(3) prohibits the transportation into Since one’s does state of residence of burden De- firearms ac castro’s quired state; outside the Amendment rights but it does noth way ing to so substantial justify as to heightened from purchasing someone scrutiny, firearm state, in her his facial challenge home pre which is statute sumptively must also fail. In most order to place convenient succeed in his buy facial anything. 922(a)(3), evident purpose The statute is to stop would need show that circumvention of “no state set circum- laws regulating gun possession; stances it exists does which so the [statute] by requiring valid, i.e., would comply residents to be with that the law uncon- conditions of sale and similar requirements stitutional in all of applications,” its or at in their home state. See S.Rep. No. 90- least lacks a “plainly legitimate (1968), reprinted sweep.” Wash. Grange State v. Wash. U.S.C.C.A.N. 2166 (concluding State Republican Party, 552 U.S. guns traffic of through mail order com (2008) mon (internal carriers and non-resident sources quotation “is marks and citation means omitted). affords circumvention and Because does not Decastro has not advanced expensive more procure an abortion cannot costly makes it more to ac- enough it.”); to invalidate Kovacs v. Coo- (as quire a firearm insulating local per, 88-89, competition, dealers from interstate or be- (1949) L.Ed. (upholding 513 city a ordinance costs). cause of transportation increased prohibiting the use of sound trucks: "That event, any limits, within that would not be a people more may easily be more cheaply and constitutional Casey, defect. See 505 U.S. at trucks, by reached sound perhaps borrowed ("The 112 S.Ct. 2791 that a fact law without cost from supporter, some zealous is purpose, serves a valid one de- not enough not to call protec- forth constitutional signed itself, to right strike at the has the tion”). making incidental effect of it difficult more or

169 (7th Cir.2010) Skoien, right fundamental 614 F.3d 645 substantially burden the — (in banc), denied, U.S.-, cert. 131 obtain a firearm sufficient self-de- to (2011). 1674, 179 L.Ed.2d 645 If an fense, assist in S.Ct. attempts only to states and laws, injury is suffered as a gun it result uncon own the enforcement their application regu of a state law stitutional Amendment infringe not the Second does firearms, lating possession prop arms, sweep and keep to and bear its challenge er is one addressed state plainly legitimate.7 is therefore McDonald, at law. See 3026 constitutionality facial The (holding ap that the Second Amendment 922(a)(3) unimpaired by the § risk states). plies to fire governing state laws sale of some 922(a)(3) observes, § As Decastro has no may arms themselves be unconstitutional. transportation exception for the of fire- 922(a)(3) Nothing on the face of sanc purchased by arms out-of-state someone tions, encourages regula state compels, home; to who is licensed Amendment. tions that offend Second Decastro is not in a to position but raise exists, If the nexus requisite interstate exception. such overbreadth (like 922(a)(3)) Congress enact may laws have to did not a license own a firearm in designed prevent the circumvention York, nor did he for one. Fa- apply law, may indulge in so doing state challenges cial overbreadth are disfavored underlying presumption that state permitted relatively settings, “in few See, e.g., are not unconstitutional. and, generally, strength specific 228(a)(1) (making it a of U.S.C. federal weighty enough reasons to overcome willfully pay support fense to fail to well-founded reticence.” Sabri v. [courts’] obligation respect living to a child with States, 600, 609-10, United state). token, By another the same courts (2004). L.Ed.2d S.Ct. There upheld have federal laws that curtail no overbreadth that Decastro possession by persons of firearms certain make in can the Second Amendment con- See, adjudications. court based Masciandaro, text. See 638 F.3d at 474 Reese, e.g., v. United States (rejecting defendant’s facial overbreadth (10th Cir.2010) (upholding against 802-04 challenge person “a ... because whom challenge a federal constitutionally applied, statute was will possession prohibiting statute of firearms challenge that not be heard to statute on anyone subject restraining to certain ground may conceivably be orders, explaining defendant others, unconstitutionally applied in oth- collaterally underlying could not attack the (inter- er situations before the Court” protective prosecution), order his federal Skoien, omitted)); quotation nal marks — denied, U.S.-, rt. ce (“A person F.3d at 645 to whom a statute (2011). may It be can’t properly applies obtain relief based that a tolerates different outcomes “statute arguments differently that a situated states, ... different but this is true of might person present.”). disability all in which a firearms situations (or stated, consequence) For the reasons Decastro’s facial other adverse de fails. pends on state law.” United States 18 U.S.C. application is not that the of Section 7. While we hold that Section face, we would on its do not rule him burden bear unconstitutional that, substantially as possibility out the on a different set of arms so to render statute facts, applied. might able a defendant to establish unconstitutional

CONCLUSION MANAGEMENT, INC., MARK A STAR reasons, foregoing judgment For the Corporation, Mark New York Great

of the district court is affirmed. Corporation, Corpora- A New York tion, Jimmy Zhan, Individually on HALL, Judge, concurring: Circuit Management, Behalf of Mark Star fully I concur in the result reached in Corporation, Inc. and Mark aka Great however, opinion. separately, I write Q. Zhan, Plaintiffs, Yi to enunciate how I reach the determination impose that 18 U.S.C. does not Bing Li, Bing Li, LLC, Law Offices of a substantial burden the exercise of Appellants-Cross-Appellees, right. Decastro’s Second Amendment v. Had opted Decastro utilize the lawful by acquired means which he could have a KOON HING & CHUN KEE SOY so, FACTORY, LTD., Company in New York and done A SAUCE played Organized Hong would have no role Laws of Kong, Defendant-Appellee-Cross-Ap- regulating By transaction. the same token, pellant. its by terms did not preclude Decastro from acquiring the 10-4931-cv(L), Docket Nos. handgun in question from the Florida deal- 11-16-cv(XAP). because all er that the federal statute ef- fected were minor limitations on the chan- United Court of Appeals, States through nels which that towas Circuit. shipped from Florida York. Even Argued: Feb. 2012. though acquisition is indeed often neces- sary effectuate the Second Amendment Decided: June arms, and bear limita- acquisition tions Decastro’s were those

occasioned refusal comply own requirements

with New York State’s

possessing handgun, and the federal

statute, therefore, played no demonstrable in precluding

role from purchas- a firearm in either state so as to

exercise his Second right. reasons, 922(a)(3),

For these applied, not substantially

does burden Decastro’s

Second Amendment to own a firearm defense his home and hearth. See

District Columbia

(2008).

Case Details

Case Name: United States v. Decastro

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 1, 2012

Citation: 682 F.3d 160

Docket Number: Docket 10-3773

Court Abbreviation: 2d Cir.