# SCOTUS - Kachalsky v Cacace (2nd ammendment bear case) **URL:** \ **Category:** Great Debates\ **Created:** [February 5, 2013, 9:05am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372 "2013-02-05T09:05:53Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 8, 2013, 1:33am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/61 "2013-02-08T01:33:05Z")
> [@Airman\_Doors\_USAF](#): > > Once you start talking about NYC, however, it all changes. Unless you are one of the elite few, NYC is essentially “no issue”. Also, they do NOT recognize anybody’s permits, including those of New York State. In other words, to carry concealed in New York City, you have to be approved by the authorities in New York City, which is approximately as likely as you winning the Powerball and probably would actually require exactly that. I could carry a concealed gun in NYC. Which is ironic because I don’t own a gun. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 3:07am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/62 "2013-02-08T03:07:07Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I originally read this as saying the “proper cause” standard was invalid (based somewhat on the wording of your OP), but it sort of conflates both the validity of the statute and of the denial of the license. So maybe there’s room for SCOTUS to rule that the denials were invalid but the statute isn’t. I suppose they could rule that way - or deny cert altogether. But if they do rule that discretuoany issue is permissible but the application was not, I would think they’d need to add quite a bit of clarity around how the standard could be applied. My take that any application of the standards that prohibits the vast majority of otherwise law abiding folks would be prima faci unconstitutional. Anything short of shall issue is ripe for abuse and many jurisdictions including New York City, Chicago, and many in CA would do whatever they can to prevent regular folks from getting a permit. Throughout Heller numerous comparisons were made between the first and second amendment. If any of these types of restrictions were placed on permits for holding a protest or building a place of worship it would be outrageous. My hope is the court makeup remains unchanged for at least 1.5 years and the same thought process is continued here. Using Heller and McDonald I thing a favorable result is the most likely outcome. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2013, 6:58am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/63 "2013-02-08T06:58:16Z")
Similar restrictions _are_ placed on protest permits. Have a look at the _Thomas_ case I liked to earlier. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 3:30pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/64 "2013-02-08T15:30:04Z")
Not to continue the analogy too far - but if there were similar guidelines defense used for permits as in Thomas that may survive - depending on the application as notes in Thomas. That decision recognized that discretion which showed patterns of abuse would be unconstitutional. The restrictions described must be content neutral and were really focused on logistical issues. No such complaint could be made in NY since the issuance of permits themselves within their current scheme has procedures in place. Given the central nature of self defense to the second amendment and the fact that New York explicitly says that self defense is not sufficient to justify a permit can you conceive of a way that the permitting scheme in its current form does not run afoul of the 2nd ? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2013, 3:48pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/65 "2013-02-08T15:48:26Z")
Where does it say self-defense is not sufficient to justify a permit? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 4:21pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/66 "2013-02-08T16:21:17Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Where does it say self-defense is not sufficient to justify a permit? From the cert petition: > [@](#): > > For most New Yorkers who are not otherwise barred from possessing and carrying weapons, the only theoretically available license to carry handguns in public for self-defense is a license “to have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” N.Y. Penal Law § 400.00(2)(f) (emphasis added). “Proper cause” is neither defined by the Legislature, nor has the Legislature set forth standards for determining when “proper cause” exists. Licensing officials enjoy “broad discretion . . . to determine whether ‘proper cause’ exists to issue a carry-concealed pistol license and may deny, revoke, or limit a pistol license for any ‘good cause,’ a determination that will not be disturbed unless it is arbitrary and capricious.” Bando v. Sullivan, 290 A.D.2d 691, 692, 735 N.Y.S.2d 660, 661 (3d Dep’t 2002) (citations omitted). The term “proper cause” denotes a legitimate reason, a circumstance or combination of circumstances justifying the granting of a privilege. **A generalized desire to carry a concealed weapon to protect one’s person and property does not constitute “proper cause.”** In re O’Connor, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992) (citations omitted) (emphasis added). To obtain a so-called “full carry” license, not restricted to activities such as target practice or hunting, applicants must demonstrate “ **a special need for selfprotection distinguishable from that of the general community or of persons engaged in the same profession.** ” Bando, 290 A.D.2d at 693, 735 N.Y.S.2d at 662 > (citations omitted). > > Each individual Petitioner sought a handgun carry license for the purpose of self-defense. Each application was rejected by one of the Respondent licensing officials for lack of “proper cause,” pursuant to Respondent County of Westchester’s recommendations. App. 131-47. (I added carriage returns and bolding because the copy/paste didn’t behave) The appellate court also said that the self defense protections of Heller were limited only to inside the home, which I believe is a clear mis-reading of Heller. Heller stated that self defense interests are most acute in the home - which logically follows that they exist outside the home, though less acute. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2013, 5:38pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/67 "2013-02-08T17:38:00Z")
That’s an interpretation of the statute, though, not a provision of the statute itself. I agree that the “home only” reading is going to be overturned, assuming cert is granted. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 6:32pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/68 "2013-02-08T18:32:30Z")
Those legal readings are controlling in NY. They are interpreting the statute, but are binding none the less, no? Those need to be overturned. If at the end of the day it is decided that “lawful self defense” is sufficient proper cause, I’d be fine with that. NY need not be shall issue if that is binding as to meet the definition of proper cause. This is actually what happened in Sacramento County in CA. A few years ago, they were a virtually no issue county. After lawsuits regarding their discretionary issue scheme, and mounting evidence that their good cause statements were being approved and denied based on varying standards, they settled and agreed to accept self defense as good cause. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2013, 6:36pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/69 "2013-02-08T18:36:44Z")
Unless the New York court held that the statute is inseparable from its reading (doubtful), SCOTUS will overturn the interpretation rather than the statute. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 7:26pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/70 "2013-02-08T19:26:00Z")
That’d be fine with me, keeping the good cause requirement, as long as a valid good cause is self defense. NY keeps its statute, and people can get permits for self defense. That’d be a favorable outcome. Apply that nationally and I’d consider that a tremendous win. Of course, even better would be striking down the whole discretionary issue scheme all together. 🙂 ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 8, 2013, 10:06pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/71 "2013-02-08T22:06:09Z")
> [@Bone](#): > > That’d be fine with me, keeping the good cause requirement, as long as a valid good cause is self defense. NY keeps its statute, and people can get permits for self defense. That’d be a favorable outcome. Apply that nationally and I’d consider that a tremendous win. Of course, even better would be striking down the whole discretionary issue scheme all together. 🙂 “Self-defense” would in practice strike down discretionary issue, because anyone who goes out in public could make the claim. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 8, 2013, 11:03pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/72 "2013-02-08T23:03:08Z")
Shhh…Yes, it would 🙂 SCOTUS could do that without striking down the NY statute if they wanted to rule more narrowly and stay within the constructs of Heller. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 10, 2013, 10:02am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/73 "2013-02-10T10:02:18Z")
> [@Bone](#): > > And talk about arbitrary - in Sacramento County, CA (after several lawsuits about the same), applying for a permit “lawful self defense” is sufficient justification. Go about 30 miles to the west and it is not. Of course, the permit is valid state wide so that makes tons of sense. Most things in CA don’t make sense, in particular their crazy gun laws. Pretty soon you guys will be shopping for 6-round mags. ---
**Author:** ![Shiloh2013](https://avatars.discourse-cdn.com/v4/letter/s/e79b87/32.png) [@Shiloh2013](https://boards.straightdope.com/u/Shiloh2013)\ **Post date:** [February 10, 2013, 12:48pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/74 "2013-02-10T12:48:26Z")
I don’t see where discretionary permits is an issue under 2A. If it’s unconstitutional, it would be under 14. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 10, 2013, 2:33pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/75 "2013-02-10T14:33:52Z")
> [@Little\_Nemo](#): > > I agree. I think the Second Amendment is a bad idea given the changes that have occurred in firearms technology since it was adopted. I see this argument a lot, and I wonder about the reasoning behind it. Presumably the argument is that the invention of repeating arms makes guns simply too dangerous to be allowed to the general public. But no one would credit the same argument applied to freedom of the press: that single-sheet manual screw presses were fine, but cable TV and the Internet are “too dangerous” to allow. That’s because the 1st Amendment has been held to safeguard the general principle of freedom of speech and expression from government censorship, not merely a utilitarian matter of some mechanism being allowed. Totalitarian governments were in fact based on the principle that government should have a monopoly on speech and expression, and the results were dismal. I think the problem here is that people get hung up on the 2nd Amendment thinking it merely states a prescription on a particular mechanism, guns. You see this when people say that you don’t have a right to own any other particular object, why a right to own guns? Gun proponents hold that the 2nd Amendment states a general principle just like the 1st Amendment does. This general principle might be worded to the effect that government shall not govern based on the powerlessness of the people; expressly that government should NOT have a monopoly on force, but should depend on the support- ultimately, the armed support- of a majority of the populace. A government that couldn’t remain in existence except by disarming the people would be one utterly without popular support. Now a lot of people DO wish to turn over all right of armed force to the government, and if they’re an abiding supermajority, then they should prove it by amending the constitution, as previously said. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 10, 2013, 4:16pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/76 "2013-02-10T16:16:09Z")
> [@Lumpy](#): > > I see this argument a lot, and I wonder about the reasoning behind it. Presumably the argument is that the invention of repeating arms makes guns simply too dangerous to be allowed to the general public. But no one would credit the same argument applied to freedom of the press: that single-sheet manual screw presses were fine, but cable TV and the Internet are “too dangerous” to allow. That’s because the 1st Amendment has been held to safeguard the general principle of freedom of speech and expression from government censorship, not merely a utilitarian matter of some mechanism being allowed. Totalitarian governments were in fact based on the principle that government should have a monopoly on speech and expression, and the results were dismal. > > I think the problem here is that people get hung up on the 2nd Amendment thinking it merely states a prescription on a particular mechanism, guns. You see this when people say that you don’t have a right to own any other particular object, why a right to own guns? Gun proponents hold that the 2nd Amendment states a general principle just like the 1st Amendment does. This general principle might be worded to the effect that government shall not govern based on the powerlessness of the people; expressly that government should NOT have a monopoly on force, but should depend on the support- ultimately, the armed support- of a majority of the populace. A government that couldn’t remain in existence except by disarming the people would be one utterly without popular support. > > Now a lot of people DO wish to turn over all right of armed force to the government, and if they’re an abiding supermajority, then they should prove it by amending the constitution, as previously said. This argument is based on an illusion - that the people have the ability to overthrow the government via the use of personal firearms. That hasn’t been true since around 1800. The disparity between the firepower of citizen gun-owners and the government is overwhelming. As long as the government keeps the loyalty of the armed forces, it has nothing to fear from a possible armed revolution by the people. If the right to keep and bear arms is based on being a check on government, then the Second Amendment is pointless. So modern gun rights advocates have wisely chosen to build on a more rational foundation of self-defense. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 10, 2013, 4:59pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/77 "2013-02-10T16:59:20Z")
> [@Little\_Nemo](#): > > This argument is based on an illusion - that the people have the ability to overthrow the government via the use of personal firearms. That hasn’t been true since around 1800. The disparity between the firepower of citizen gun-owners and the government is overwhelming. As long as the government keeps the loyalty of the armed forces, it has nothing to fear from a possible armed revolution by the people. > > If the right to keep and bear arms is based on being a check on government, then the Second Amendment is pointless. So modern gun rights advocates have wisely chosen to build on a more rational foundation of self-defense. But by that logic _all_ of the provisions of the Bill of Rights are pointless, since if the only thing preventing the government from flatly violating the Constitution is that it doesn’t want to, then we’re screwed. Think of it this way: the Bill of Rights is a “tripwire”, a statement of principles that if the government ever violated them would raise alarms and red flags throughout the nation. Certainly a lot of people out there are taking what they perceive as infringement on the 2nd Amendment dead serious. You have the “Oath Keepers”, you have county sheriffs and state legislatures declaring they’ll refuse to recognize or enforce such laws. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 10, 2013, 9:12pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/78 "2013-02-10T21:12:58Z")
> [@Lumpy](#): > > But by that logic _all_ of the provisions of the Bill of Rights are pointless, since if the only thing preventing the government from flatly violating the Constitution is that it doesn’t want to, then we’re screwed. No. Freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and most other freedoms pretty much work in the way their authors intended. But if the intent of the authors of the Second Amendment was to guarantee the citizenry the ability to defeat regular military forces then the Second Amendment has failed in its purpose. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 10, 2013, 9:36pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/79 "2013-02-10T21:36:30Z")
It’s important to note that the existence of a circuit split does not automatically mean SCOTUS will grant cert. SCOTUS has allowed [a _three-way_ circuit split](http://federalevidence.com/node/1351) on a major constitutional issue to stand since 1989 (whether evidence that a defendant remained silent prior to receiving a _Miranda_ warning may be admitted by the government for other than impeachment purposes). > [@Shiloh2013](#): > > I don’t see where discretionary permits is an issue under 2A. If it’s unconstitutional, it would be under 14. Yes, technically (assuming it _is_ a violation), it would be a violation of the Due Process Clause of the 14th (the substantive right to keep and bear arms having been incorporated under _McDonald v. Chicago_.) It doesn’t change the analysis, though, just the formal pleading requirements. > [@](#): > > “Self-defense” would in practice strike down discretionary issue, because anyone who goes out in public could make the claim. Not quite. Finding that self-defense must be deemed a valid ground for issuance of a permit doesn’t mean the other requirements no longer need to be met. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 11, 2013, 2:15am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/80 "2013-02-11T02:15:35Z")
> [@Little\_Nemo](#): > > No. Freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and most other freedoms pretty much work in the way their authors intended. But if the intent of the authors of the Second Amendment was to guarantee the citizenry the ability to defeat regular military forces then the Second Amendment has failed in its purpose. It’s good then, that one of the core purposes of the 2nd amendment is self defense. See Heller. [Previous page](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372.md?page=3) [Next page](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372.md?page=5)