Friday, August 2, 2013

NYC gun licensing fee is constitutional

The Supreme Court in 2008 opened up the doors to gun-rights litigation when it held in the Heller case that the Second Amendment confers an individual right to keep and bear arms. Gun cases are now working their way through the federal courts. This does not mean that the courts are recognizing new gun rights.

The case is Kwong v. Bloomberg, decided on July 9. New York City charges $340 for a three-year gun license. Second Amendment advocates argue that this fee violates the Constitution. It does not, the Second Circuit (Cabranes, Walker and Wesley) says. The Court borrows from our First Amendment cases in deciding whether licensing fees violate the Constitution. Under the First Amendment, if you want to hold a parade, the government can charge you a licensing fee to defray the administrative costs associated with processing the application and maintaining public order. Same goes for Second Amendment cases. While the $340 licensing fee is significantly more money than that charged by by other jurisdictions, that grievance is irrelevant. What's relevant is that it costs New York City about $340 to defray the administrative costs of processing gun license applications.

The plaintiffs also claim that the licensing fee imposes an unconstitutional burden on gun ownership. In order to resolve this issue, the Court of Appeals has to decide what level of scrutiny to apply. If the Court applies heightened scrutiny, the government has a much harder time in defending the law. Under rational basis review, anything goes. The Second Circuit does not tackle the legal standard head-on, deciding instead that the law survives what it calls "intermediate heightened scrutiny" because"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."

Finally, the plaintiffs sue under the Equal Protection Clause because state law allows New York City and Nassau County to set their own licensing fees separate and apart from the rest of the state.This distinction survives rational basis review. The rest of the state can charge $3 to $10 to license firearms. But, "beyond setting the $3-10 fee range applicable to most of New York State, which plaintiffs do not contest, [the Penal Law] itself does nothing to burden anyone's Second Amendment rights." The law does not target a suspect class (such as race or religion) or burden a fundamental right. The City rate also survives rational basis review because it defrays administrative costs associated with processing gun applications.

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