If a New York City resident wants to exercise their Second Amendment rights by purchasing a gun, it’s not as easy as walking into a store, filling out a Form 4473, passing a background check, and plunking down money for the firearm.
Before they can even go through a background check at a gun shop, they must first go through the burdensome process of acquiring a license issued by the NYPD’s License Division, which costs more than $400 on its own and can take months to obtain.
Even then, after the buyer has passed a NICS check they’re not allowed to walk out of the store with their newly-purchased gun. They must then obtain and complete purchase authorization form, return it to the License Division along with a bill of sale, photographs, and inspection of the firearm. Then they have to wait for the License Division to issue an ‘amended’ license, because New York City says every gun has to be registered to the specific person who holds the license for that particular firearm.
Despite the chilling effect those rules have on a fundamental civil right, a U.S. District Court judge dismissed a legal challenge brought by three New York residents, who claimed that none of the “administrative regulations here operates to permanently deprive applicants of their right to own and carry firearms.”
Judge Jed Rakoff is wrong, of course. The cost of the license alone serves to block many New Yorkers from even trying to acquire a firearm to possess at home or to carry in self-defense. But, as the Supreme Court noted in Bruen, excessive wait times and exorbitant fees for licenses can also render “shall issue” licensing systems unconstitutional, which means that even a temporary deprivation of the right to own and carry firearms can infringe on our Second Amendment rights.
The trio of plaintiffs appealed Rakoff’s decision to the Second Circuit, and on Tuesday attorney Amy Bellantoni presented her arguments to a three-judge panel on the appellate court.
“Reversal of the district court decision is required here, because at the 12(b)(6) [motion to dismiss] stage Second Amendment challenges, the issue is only whether the law is being challenged affect the plaintiff’s right to acquire, possess and or carry arms,” attorney Amy Bellantoni told the three-judge Second Circuit panel during oral arguments on Tuesday morning.
Bellantoni told the panel New York City’s administrative constraints on gun purchasing “go right to the very heart of the plain text of the Second Amendment, which is the right to keep and bear, to have and possess, and right to acquire is necessarily wrapped up within the right to possess, because without the ability to acquire, then you have no possession and no carriage, you have no defense.”
U.S. Circuit Michael Park, a Donald Trump appointee, queried what the injury from the licensing fee and registration fees entails for gun buyers.
“We’re not at the stage right now yet where the city needs to justify requiring a permission slip, but I will say that the harm there is that without the ability to acquire at the point of purchase, my client has been harmed,” Bellantoni said. “He’s not been able to acquire the handgun and carry it and possess it for self-defense at that moment.”
Park followed up by asking Bellantoni what makes the city’s mandatory waiting period different from any delay imposed by a NICS check at the point of sale, and the attorney noted that there’s a big difference between waiting 10 or 15 minutes and the weeks that it can take to lawfully purchase a gun in the Big Apple.
“Now, 30 days, it’s not reasonable,” she said. “What are we waiting for? They’re already eligible law-abiding people, and now they have to be like children. You know, wait until they get permission to take their property out of the store. It makes it’s it makes no sense.”
Jeremy W. Shweder for the New York City Law Department meanwhile urged the panel to affirm the lower court’s dismissal, arguing the gun owners lack standing or their claims are moot.
“Plaintiffs have not adequately alleged that there are no set of circumstances under which the challenge regulations would be valid,” he told the Second Circuit on Tuesday. “Plaintiffs essentially argue that they satisfy their burden at step one merely by saying that there exists a firearm regulation and then pointing to the Second Amendment.”
As Bellantoni argued, at this stage of the litigation the plaintiffs don’t have to meet that burden. And honestly, if the Second Circuit revives the litigation the onus is on the city to justify its draconian rules by demonstrating they’re part of the national tradition of gun ownership. Good luck with that, because these kinds of restrictions are utterly lacking in precedent at either the time of the Founding or the ratification of the Fourteenth Amendment in 1868.
The plaintiffs are also challenging the city’s gun rationing law, which limits the purchase of a firearm to one every 90 days; a law the city claims is meant to prevent firearms trafficking.
“Stepping back, the anti-trafficking law is not a bar on the acquisition of firearms,” the city wrote in its appellate brief. “It is not a bar on keeping or bearing firearms; and it is not a bar on where firearms can be carried. It simply regulates the pace of additional firearm acquisitions by requiring someone who has just acquired a handgun — and may already have many more — to wait 90 days before purchasing an additional one.”
That’s still a meaningful constraint on the purchase of a firearm, and to what end? New York City (and state) already have universal background checks, which means that no firearm can be lawfully transferred without going through an FFL and abiding by all of the other licensing laws. If those laws aren’t enough to prevent illicit gun trafficking, then a “1-in-90” gun rationing law certainly isn’t going to do the trick. Traffickers would simply broaden their pool of straw buyers to get around the restriction.
This law may impose a slight burden on illicit traffickers, but it imposes a more substantial burden on lawful gun owners. It’s not uncommon for someone to decide they don’t really like their new gun as much as they thought they would after they’ve spent some time at the range with their new acquisition, but New York City’s restriction makes it virtually impossible for them to acquire another unless they twiddle their thumbs for three months.
The city also defended it’s sky-high licensing fees by noting that the Second Circuit upheld a $340 licensing fee in a case known as Kwong v. Bloomberg. That case, however, was decided pre-Bruen, and the court upheld the fees in part by applying “intermediate scrutiny”; a standard that the Supreme Court has expressly rejected.
The city maintains that the Supreme Court’s “fee jurisprudence” has determined that fees charged by governmental entities on expressive activities protected by the First Amendment are constitutional so long as they 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.” If it costs the NYPD License Division hundreds of dollars to approve an application, then that cost can be imposed on the applicant.
But what’s stopping he city from imposing ridiculous licensing requirements that force the License Division to spend many hours (and dollars) approving an applicant, which in turn jacks up the cost of a license? Absolutely nothing, since that’s exactly what’s happening here. If the city didn’t put so much red tape between prospective gun owners and their Second Amendment rights, it wouldn’t cost nearly as much for the NYPD to issue a license.
The Second Circuit panel should reinstate Mills v. NYC and allow the plaintiffs to continue to seek justice against New York City’s abusive licensing regulations and gun rationing scheme, which not only imposes a substantial burden on those purchasing firearms but prices some New Yorkers out of even trying to exercise their Second Amendment rights (at least legally).
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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