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CHALLENGE
TO THE CONSTITUTIONALITY OF SECTION 400.00 OF THE PENAL LAW OF THE STATE OF
NEW YORK
New York State's Handgun Licensing Scheme
Violates the Second and Fourteenth Amendments to the United States
Constitution.
Article 265 of the Penal Law of the State of New York imposes a general ban
on handgun possession. Article 400 provides certain narrow exceptions to
the general ban and is New York State's firearms licensing statute. It sets
forth the requirements for eligibility for licenses to carry, possess,
repair and dispose of firearms. While most of the provisions of the statute
generally offend common notions of freedom and individual rights, those
provisions relating to licenses to possess or carry handguns violate the
Second Amendment to the United States Constitution, which guarantees the
individual right to possess a handgun for traditionally lawful purposes.
The Second Amendment to the United States Constitution protects the
individual right to keep and bear arms. This fundamental liberty includes
the right to own and possess a handgun for traditionally lawful purposes and
to carry a handgun within the home. Section 400.00 (1) (b) codifies a
constitutionally impermissible "good moral character" requirement, which for
the reasons discussed below offend the Second Amendment to the United States
Constitution and should not survive a proper challenge.
Equally impermissible are the provisions of sections 400.00 (1) (g), (2) (f)
and (3) (a), which shift the burden of the state to establish a valid basis
for denial of a pistol license to the applicant to show good cause for
issuance of the license. Laws drafted in this manner are indicative of a
general prohibition, which can only be overcome by meeting certain
requirements, the burden of proof of which falls upon the citizen. Such
laws are generally unconstitutional where the ban at issue is a restraint on
a fundamental right.
Section 400.00 (11) of the Penal Law of the State of New York grants the
handgun licensing officers of Suffolk and Nassau Counties and the City of
New York the authority to revoke or cancel a pistol license at any time for
any reason. No state possesses the power to issue such a grant of authority
with respect to a fundamental right, and such a grant exceeds the
constitutionally permissible powers of the State of New York to restrain the
right to keep and bear arms. Simply stated, the power to unilaterally deny
a fundamental right at will with no accountability renders the right
meaningless and negates it utterly. Section 400 (11) of the Penal Law
grants to transient municipal employees the power to negate provisions of
the Federal Constitution. As such, New York State's handgun licensing
scheme violates the Second Amendment to the Constitution and cannot stand.
Moreover, section 400.00 (11) of the Penal Law provides a substantially
different restraint for citizens of Suffolk and Nassau Counties and the City
of New York than for citizens living elsewhere in the State of New York.
Whereas the handgun licensing officers of Suffolk, Nassau, and New York City
may unilaterally divest citizens of their fundamental right to keep and bear
arms, that power is reserved to judges elsewhere in the State. This
disparity leaves the Second Amendment rights of Suffolk, Nassau and New York
City residents to the whim of unelected civil servants with little or no
legal education, while the rights of citizens elsewhere in the State are
left to the whim of elected judicial officers who generally have a
substantial legal education and have been elected to office by the people
they serve. Such a disparity runs afoul of the Fourteenth Amendment's Equal
Protection Clause, which is intended to prevent such unequal treatment of
citizens under the law.
When evaluating the constitutionality of a state law restraining a
fundamental right, the courts will apply one of three levels of scrutiny.
"Strict scrutiny" is the highest level, in which a law restraining a
fundamental right is held unconstitutional unless it is narrowly tailored to
serve a compelling government interest and there is no less restrictive
alternative available to achieve that compelling interest. "Intermediate
scrutiny" is the level in which a law restraining a fundamental right will
be held unconstitutional unless it is substantially related to an important
government interest. "Rational-basis test" is the lowest level, in which a
law restraining a fundamental right will be held constitutional so long as
it is reasonably related to a legitimate government interest. While it is
unclear at this time which level of scrutiny will apply to the Second
Amendment, the restraints imposed by the laws of the State of New York on
the right to keep and bear arms cannot survive any level of scrutiny, since
they do not provide bases of restraints on the right, but rather set forth
criteria a citizen must meet in order to prove worthiness to exercise the
right. Additionally, New York State's handgun licensing scheme renders the
Second Amendment impotent, as it allows for the denial of the right to keep
and bear arms at any time and for any reason.
New York State's handgun licensing laws can be challenged by seeking a
declaratory judgment rendering it unconstitutional in part or in full, or by
citizens with standing to bring an action other than for a declaratory
judgment. To have standing to challenge this provision of state law, a
person must have standing as set forth in any of the sections above, or must
have had a pistol license suspended or revoked for reasons other than an
arrest, conviction, a mental incapacitation, or by virtue of a court order
of protection. Based on the nature of the statutory scheme in question and
the issues at hand, an action seeking a declaratory judgment seems to be the
most appropriate vehicle for seeking the relief mandated by the Second
Amendment to the United States Constitution.
If you have been aggrieved by New York State’s licensing requirements, and
you feel you have standing to challenge the constitutionality of New York
State’s licensing statute, stand up for your rights and join us in our
fight. Send an email to
support@lifreedomfund.org
today.
For all others, join us in our historic fight! Every dollar counts towards
preserving our freedoms. Click the donation button below and help us
overturn New York State’s restrictions on our constitutional rights. Thank
you for your support.
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