New York's concealed handgun law does not violate Second Amendment

The Supreme Court in 2008 gave life to the Second Amendment, holding that the right to bear arms prevented the District of Columbia from banning handguns in the home. That ruling, United States v. Heller, held for the first time that the Second Amendment protects an individual right to own a gun in certain cases. For the next 25 years, courts will have to explore the contours of that right.

The case is Kachalsky v. County of Westchester, decided on November 27. When it comes to interpreting the Second Amendment, the Second Circuit is just getting started. It holds that the Constitution allows New York to make you demonstrate "proper cause" before you can carry a concealed handgun in public.

This case arises from a series of plaintiffs who were denied permits to carry a concealed handgun.Unless you work in certain professions that need a gun as a job or safety requirement, potential handgun owners have to "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." A generalized need for self defense is not enough. You also have to undergo a mental health, criminal history and moral character check. Do these requirements violate the Second Amendment? They do not.

Heller does not mean that every plaintiff will win his Second Amendment case. Heller struck down the D.C. gun prohibition because a man's home is his castle, and constitutional law generally keeps the home off-limits to government intrusion. But once you step outside with a pistol, the government has a heightened interest in making sure that guns are not in the hands of every Tom, Dick and Harry who wants one. The Second Circuit (Katzmann, Lynch and Wesley) labors to find the right standard of review in a case like this. It settles on intermediate, and not strict, scrutiny. The gun restriction is legal if it is substantially related to an important government interest., the same test governing sex discrimination. The Court says, "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.' There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety."

The proper cause requirement under New York State law satisfies this test. The state decided 100 years ago to regulate handguns like this. The Second Circuit sums it up:

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 use a handgun for target practice or hunting. ... And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. Moreover, the other provisions of section 400.00(2) create alternative means by which applicants engaged in certain employment may secure a carry license for self-defense. As explained earlier, a license “shall be issued” to merchants and storekeepers for them to keep handguns in their place of business; to messengers for banking institutions and express companies; to state judges and justices; and to employees at correctional facilities. 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.