Second Amendment victory at the Second Circuit

The Second Circuit has reinstated a Second Amendment lawsuit that alleges that Nassau County had unfairly revoked the plaintiff's pistol license and confiscated his guns following a domestic dispute with his daughter. The Court finds the County lacked substantial evidence that plaintiff is a danger to safety of others.

The case is Henry v. County of Nassau, issued on July 26. It started when plaintiff's daughter got a temporary order of protection against plaintiff after he allegedly put her in a headlock during an argument. The police department's pistol office then suspended plaintiff's pistol license and took all of his firearms pursuant to county policy stating that, pending further investigation, the county may immediately suspend a pistol license under these circumstances and a licensee must surrender his firearms. When the order of protection expired, the county did not return the guns to plaintiff or reinstate his pistol license. The county eventually formally revoked his pistol license and prohibited him from owning any weapons. Plaintiff's internal appeal failed because the county determined that plaintiff had a history of domestic violence, there had been prior orders of protection against him, and plaintiff had failed to notify the county of the order of protection against him and about his son's depression diagnosis.

The district court dismissed the case, but the Second Circuit (Menashi, Walker and Carney) brings it back. The Court notes that the core of the Second Amendment's protections is that law-abiding citizens may "use arms in defense of hearth and home," as per Second Circuit precedent, drawing in turn from Supreme Court authority, District of Columbia v. Heller, 554 U.S. 570 (2008). While the district court said plaintiff has no case because the County has not banned guns for everyone, that was in error. The Second Amendment protects gun ownership even if one person is denied a weapon in violation of constitutional standards. 

The Court of Appeals holds that plaintiff sufficiently alleges a substantial burden on his Second Amendment rights because the county's measures against him deprive him of the opportunity to defend himself even though he has never been convicted of any crime. The Court analogizes to First Amendment "time, place and manner" cases that require the government to regulate speech so long as people have alternative means to express themselves. Since the complaint alleges the county did not have a reliable basis to find that plaintiff is a threat to others, the lawsuit is reinstated, as the county did not conduct a bona fide inquiry into whether substantial evidence supported a finding that plaintiff was too dangerous to own firearms.